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Law Reform Commission Commission de réforme du droit
of Canada du Canada
Immunityfromexecution
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ADMINISTRATIVE LAW SERIES
DY PAPER
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IMMUNITYFROMEXECUTION
Administrative Law Series
r DOCUMILN:
Available by mail free of charge from:
Law Reform Commission of Canada
130 Albert St., 7th Floor
Ottawa, Canada
KIA 0L6
Suite 310
Place du Canada
Montréal, Québec
H3B 2N2
Law Reform Commission of Canada 1987
Catalogue No. J32-3/38
ISBN 0-662-54292-4
r / A
IMMUNITYFROMEXECUTION
Administrative Law Series
A Study Paper prepared for the
Law Reform Commission of Canada
by
Daniel Mockle, LL.B., D.E.A., LL.D.(Member, Québec Bar)
Digitized by tine Internet Arcliive
in 2012 with funding from
University of Ottawa
http://archive.org/details/imnnunityfromexecOOnnock
Table of Contents
INTRODUCTION 1
CHAPTER ONE: Existence of This Extraordinary Privilege 5
Section I: Express Recognition of Immunity from Execution 5
I. The Dual Source of Immunity from Execution 5
A. Legislative Codification 6
B
.
Recognition of the State's Special Pre-eminence 8
1
.
Monopoly of Constraint 9
2. The Budgetary Authorization Rule 11
3. The Idea of Special Pre-eminence 12
(a) Paramountcy of the Executive 12
(b) Primacy of the General Interest 13
IL Favourable Judicial Interpretations of Immunity from Execution 14
Section II: Absence of Legal Safeguards relating
to the Execution of Judgments 18
I. The Phenomenon of Non-Compliance with Judgments 19
A. Limits of the Existing Legal Regime 19
B. Types of Administrative Response 21
1
.
Overt Resistance 21
2. Passive Resistance 22
(a) Delay 22
(b) Incomplete Execution 23
3. Administrative Alternatives to Non-Compliance 24
(a) The Practice of Ratification 24
(b) Reconfirmation of a Vacated Decision 26
(c) Unilateral Changes to the Circumstances in Dispute 28
IL The Ineffectiveness of Alternatives to Compulsory Execution 30
A. Passive or Non-Executory Remedies 30
1
.
Res Judicata 30
2. Declaratory Judgment 32
B
.
Active or Executory Remedies 34
1 . Mandatory Remedies 34
(a) Problems with the Injunction 35
(i) Parties Defendant 35
(ii) Criteria of Availability 37
(b) The Limits of Mandamus 38
2. Punitive Remedies 39
(a) Contempt of Court 39
(b) Damages 42
Conclusion to Chapter One 44
CHAPTER TWO: Reappraising Immunity from Execution 45
Section I: Existence of a Reform Movement 45
I. Developments in Other Countries 46
A. The Situation in the United States 46
1
.
Survival of Sovereign Immunity 46
2. The California Reform 49
B. The French Reform of 1980 51
1
.
Astreinte in Administrative Law 52
(a) The Unorthodox Character of Astreinte 52
(b) Conditions of Application 53
2. Evaluation of Astreinte in the Reform of Canadian Law 55
(a) Absence of a Principle of Astreinte in Canadian Law 55
(b) Comparison with Contempt of Court Proceedings 56
II. Academic Commentary 57
Section II: The Reality of Modem Administration 59
I. The Problem Defined 59
A, Pitfalls of the Egalitarian Approach 60
B
.
Characterizing Administrative Action 63
1
.
A Purposive Distinction 63
2. Criteria for Distinguishing the Public from the Commercial 66
IL Recognizing a Right to Execution 67
A. Potential Solutions 68
1
.
Indirect Means 68
2. Direct Means 70
(a) Legitimacy of Compulsion 70
(b) Penal or Civil Sanction? 71
B
.
Strategies for Reform 72
1
.
The Search for Effective Execution Remedies 72
2. The Special Case of Compensation (Set-Offs) 76
Conclusion to Chapter Two 79
GENERAL CONCLUSION AND RECOMMENDATIONS 81
BIBLIOGRAPHY 91
TABLE OF CASES 99
TABLE OF STATUTES 103
Introduction
Working Paper 40 was published by the Law Reform Commission of Canada in
July 1985 to initiate a thoroughgoing reappraisal of the legal status of the federal
Administration (Canada, LRCC, 1985). The purpose of Working Paper 40 was to set
out the general principles on which several monographs would be based. This Paper on
Immunity from Execution is the first such detailed study. Within the framework of
Working Paper 40, the Commission had no qualms about pointing to liability in tort
and execution of judgments as problem areas. It stressed that its conclusions were
merely speculative, aimed only at identifying problems and indicating possible policy
options. This study goes beyond the speculative, and attempts to examine in detail
various problems relating to immunity from execution.
The choice of this subject may seem surprising, considering that other privileges
currently enjoyed by the federal Administration would seem to pose more urgent
practical problems. Empirical data suggests that, in fact, immunity from execution is
not a source of significant difficulty. In general, the federal Administration complies
with court decisions. Hence, the rationale for this study must be found elsewhere.
This study is only part of an extensive research programme. In undertaking a
critical reappraisal of the legal status of the federal Administration, the Law Reform
Commission of Canada intends to make an exhaustive study in this area. This study is
an indispensable component of the attempt to modernize and actualize this area of the
law. Only the fact that it constitutes the first of the monographs may raise questions.
Basically, the choice of this topic stems from the very nature of the immunity
which is in question, as well as the impact that amending it may have on any
reappraisal of other governmental privileges. To the law reformer, immunity from
execution is one of the most formidable privileges. Its apparent invulnerability
constitutes a major challenge. Moreover, it underlies the general belief that Government
entities are subject to a distinct body of law, from which the principles and concepts of
ordinary law are automatically excluded. Federal and provincial authorities may claim
complete immunity from all manner of execution process. This theoretically exempts
them from forfeiture, destruction and dismantlement, eviction, retention, sequestration,
affixing of seals, seizure before and after judgment, search and seizure, taking of
inventory, forced sale, legal assignment, seizure by garnishment, examination after
judgment, accounting, ejectment, distraint, provisional execution, possessory action,
appointment of curators, giving of security, seizure in execution, and finally, injunctive
relief. *
This list represents the correct English civil law terms. Catalogues and comparisons for all immunities in
the many Canadian jurisdictions are clearly beyond the scope of this document. Evolution has taken place
within the particular circumstances of each Canadian jurisdiction. However, it may be said that, in general,
there are several examples of execution process which are not available for debts owing by the Crown;
among these are attachment of debts, appointment of a sequestrator and appointment of a receiver. In
England fieri facias, sequestration, writs of delivery and examination of the judgment debtor are excluded
from applying in respect of orders against the Crown. This is true for judgments, decrees, rules, awards or
declarations in that country — TR.
Because the federal Administration typically accedes to the special prerogatives of
the Crown, its immunity seems both total and invariable. It is exempt from official
coercion in the execution of judgments against it, whether pretrial, interlocutory or
final. Even the Garnishment, Attachment and Pension Diversion Act does not
fundamentally alter this immunity, because this liberalizing statute is actually directed
against Government employees and agents, not against the Crown itself. What is more,
the Act gives only limited recognition to the garnishment principle; section 18 of the
Act states that "[n]o execution shall issue on a judgment given against Her Majesty in
garnishment proceedings permitted by this Part." In other words. Her Majesty has a
duty to pay the salary of one of her employees to a creditor, but can in no way be
compelled to do so. It is indeed a strange statute which, while permitting a degree of
compulsory execution, ultimately ends up by ruling it out.
Immunity from execution is part of the hard core of Government privilege, to
which any change seems out of the question from the start. In an attempt to shed newlight on this apparently invulnerable privilege, this study is intended to be innovative.
Its main aim is to rationalize an area of the law which all too often only reflects vested
interests. Any effort to modernize the Administration's legal status must, therefore,
escape these inherited obstacles, and explore the broadest possible range of options.
These obstacles are significant. Underneath the legal rhetoric, immunity from
execution reflects a distinct conception of the State and the Administration. Not only
does the Government enjoy a monopoly of constraint and organized force, its special
pre-eminence is also reinforced by an exemption from such constraint. The rationale
lies in a reductio ad absurdum: the Administration cannot turn its exclusive power on
itself. The Administration is the police, whether in judicial or administrative
enforcement proceedings. In this light, the purely legal concept that judicial decisions
are to settle disputes finally and must be complied with as rendered {res judicata), is
essentially theoretical. According to the Rule of Law, the Administration must comply
with orders of the legislative and judicial authorities. Does this safeguard make reform
unnecessary? If the Administration, willingly or unwillingly, complies with judicial
decisions, is not the extraordinary nature of the existing immunity only of minor
importance?
Immunity from execution is a matter of ongoing concern in several Western
countries: studies reveal that in France and the United Kingdom the Administration, by
various means, has frequently refused to comply with the substance of a decision.
Whether the absence of similar studies in Canada should be taken as evidence that the
federal Administration complies with court orders in all respects is not all that crucial
to determine as a factual matter. What really matters is whether immunity from
execution is a notion which should be even relevant today. Because much administrative
action has an undeniably industrial or commercial aspect, a general principle of
immunity seems excessive. In modernizing the law, should one not be concerned to
reflect the true nature of administrative action? Furthermore, under exceptional
circumstances the Administration may cite Government privilege or reasons of public
policy as reasons for declining to comply with a court decision. Theoretically, it can
do so by invoking the special prerogatives of the Crown. Is not the continued existence
of Crown immunity justification enough for endowing the individual with tangible
safeguards? It is not assumed here that the Administration's future conduct will be
either good or bad. Rather, the extraordinary nature of existing immunity is simply ripe
for reappraisal according to new standards.
There are several possible avenues of reform. Between the extremes of wholesale
application of ordinary law and preservation of the existing immunity, a compromise
solution may be found in the notion of a special legal regime applicable to the federal
Administration. How can the need for effective administration be reconciled with
demands for justice from those who have paid dearly for judicial recognition of their
rights? Do the concepts of democratic administration and the submission of the
Administration to law necessarily imply a legal position identical to that of the
individual? Or should the Administration be beyond compulsion of any kind, in the
interests of fulfilling public policy objectives? These complex questions admit of no
simple or categorical answers.
Working Paper 40 proposed some general principles to guide resolution of these
types of questions (Canada, LRCC, 1985). First, traditional Crown privileges and
immunities were shown primarily to benefit the Government and the Administration.
Our analysis, therefore, is focussed on the Administration itself, and not on the
supralegal entity called the Crown. This approach facilitates concrete discussion of the
operations of the modem Administration, and permits a proper balance, better in tune
with social and economic reality, to be struck between the competing interests of the
individual and the Administration.
The nature of the analysis which follows is thus quite clear. It seeks to develop
safeguards which are responsive to the actual practices of the Administration. Initially
however, the main problems inherent in the present system must be identified. Chapter
One is therefore devoted to a discussion of current law (Chapter One: Existence of This
Extraordinary Privilege). Chapter Two focusses on specific reform proposals in light
of the experience of different foreign countries (Chapter Two: Reappraising Immunity
from Execution). This initial research is all the more important because there has
apparently been no in-depth study of this subject in Canada.
CHAPTER ONEExistence of This Extraordinary Privilege
Only that part of the federal Administration that benefits from the legal status of
the Crown can claim full immunity from forced or compulsory execution. That part
which "is not the Crown" may be exposed to execution process in the same way as
any individual. It has, therefore, been necessary to clarify the nature of the Crown's
special legal regime. This has occurred in two ways. First, both Parliament and the
courts have spelled out the foundation of this regime (Section I: Express Recognition of
Immunity from Execution). This consists of a formal prohibition upon recourse to
execution process. Second, on a more concrete and pragmatic level, the principle of
immunity puts in doubt the availability of the declaratory judgment or the usefulness of
pleading res judicata, to compel the Crown's compliance with a judgment. What is
more, the Administration is often able to create a new situation, either in fact or in law,
which would make the very idea of execution meaningless (Section II: Absence of
Legal Safeguards relating to the Execution of Judgments). Taken as a whole, therefore,
it is difficult to gain an exact sense of the nature and extent of official non-compliance.
Section I: Express Recognition of Immunity from Execution
There is no doubt about the existence of immunity from execution. The fact that it
is declared expressly makes any direct challenge difficult, and explains why the courts
as a general rule have construed it in a manner favourable to the interests of the
Administration. Yet any analysis limited only to a list of relevant enactments and
precedents would give an inadequate picture of what is in reality a founding principle.
Behind formal appearances are deep-rooted assumptions linked to a well-defined
conception of the Administration and the Government. Reflected more or less
articulately in the concept of the Crown, these assumptions make it possible to justify
a view of the Government as being above ordinary law.
I. The Dual Source of Immunity from Execution
Legislative enactments which are considered to codify customary law are the
primary source of immunity from execution. But custom remains of great significance,
because it helps explain a rationale for immunity which may not be evident from a
simple reading of these statutes. The common law in this case shows that purely legal
arguments are linked with more contingent factors. In conferring special privileges on
the Royal Administration, English common law was in fact recognizing the special pre-
eminence of an important part of the administrative function. Consequently, practical
reality explains much of the origin of this special Crown privilege.
A. Legislative Codification
Although immunity from prosecution has now been codified, its full significance
can only be understood by an examination of its medieval origins. When the person of
the Monarch and the State were one and the same, he as an individual owned all
"public" property. • His personal domain, and specifically everything within his
dominium, was exempt from the ordinary law of compulsory execution. Originally,
"His Majesty's Service" was not to be disrupted in any way, nor was he to be
disturbed in the enjoyment of his property. In a legal system which has never
recognized the existence of either the State or the Administration, this immunity simply
continued to be associated with the Crown. Distinctions drawn in other systems between
public and private domains, natural and artificial persons, Head of State and Crown,
are simply inapplicable. The fact that most State property still belongs to the Crown,
without distinction as to its purpose or function, explains the general and absolute
nature of immunity from execution. It is precisely because the concept of the Crowncontinues to embody the State in all its various manifestations, that any change seems
unthinkable. 2 In his classic work, Chitty describes this strange situation through direct
reference to the person of the King: "Even if a subject succeed in a petition against the
King, His Majesty's goods are not liable to be taken in execution" (1820: 376).
Time has clearly worked against this reference, however, because in the early
nineteenth century it was unlikely, to say the least, for distinctions to be made between
State and Crown. Strictly speaking, Chitty' s definition is too narrow. His statement of
the common law rule is limited to cases of seizure of property, whereas in actual fact
the immunity enjoyed by the Crown is much broader. The English codification of 1947
approximates the present state of the common law. It provides that a court may not
order any seizure, garnishment or other similar measure to obtain payment from the
Crown of a sum of money {Crown Proceedings Act, 1947, s. 25). Yet even here, the
description of Crown immunity is incomplete because it is limited to orders to pay
money. Actually, the Crown cannot be compelled in any way, either to undertake a
given act, or to refrain from acting. The concepts of "specific performance" and
"mandatory injunction" cover situations where a court might order that a particular act
be carried out. But the very idea of unilateral force and constraint in a judgment is
incompatible with Crown immunity. The 1953 Canadian codification better expresses
the real nature of Crown immunity: "No execution shall issue on a judgment against
the Crown given under this Act" (Crown Liability Act, s. 17(1)). This provision is
complemented by section 6, which states:
Nothing in this Act authorizes proceedings in rem in respect of any claim against the
Crown, or the arrest, detention or sale of any Crown ship or aircraft, or of any cargo or
1. "Perhaps the most important influence of these feudal ideas may be found in the confusion between
proprietary rights and governmental rights which was fostered by them .... No distinction is drawn
between the King's private property and the property which he holds in the right of his crown"
(Holdsworth, 1966: 462).
2. On the survival of the unitary principle, see Canada, LRCC, 1985: 6.
other property belonging to the Crown, or gives to any person any lien on any such ship,
aircraft, cargo, or other property.^ [Emphasis added]
But the defect of these provisions is that they contemplate only Crown liability in tort.
It is thus no surprise that in 1970 Parliament went still further, providing in subsection
56(5) of the Federal Court Act that "[n]o execution shall issue on a judgment given by
the Court against the Crown." This privilege may therefore be invoked in the Federal
Court regardless of the type of litigation. The net result of these enactments is that,
federally, all aspects of the traditional Crown immunity from enforcement proceedings
are now codified.
In addition to these basic federal statutes, there is a uniform body of analogous
provincial enactments. In Québec, section 94.9 of the Code of Civil Procedure favours
the Crown by prohibiting post-judgment examination, provisional execution, seizure,
compulsory execution, judicial sale, auction and adjudication. All procedural rules and
recourses that ordinarily apply as between individuals are of no avail in the execution
of a judgment against the Crown.
The same is true of common law provinces. All enactments dealing with the
Crown have a stock provision directly ruling out any form of compulsory execution.
For example, section 25 of the Ontario Act {Proceedings Against the Crown Act)
provides that "[n]o execution or attachment or process in the nature thereof shall be
issued out of any court against the Crown." Statutes of other provinces include a
section which seemingly limits the exclusion of compulsory execution to orders to pay
money ("... shall be issued out of any court for enforcing payment by the Crown of
money or costs")."* But, because they invariably contain another provision stating that
"... the court shall not, as against the Crown, grant an injunction or make an order for
specific performance, but may, in lieu thereof, make an order declaratory of the rights
of the parties,"^ the general immunity is preserved. Under these provisions, a judgment
against the Crown can only be declaratory and can confer no right, a feature which still
further extends the scope of immunity from execution. Indeed, it is not only coercion
which is rejected, but the entire concept of an executory judgment. A judgment against
the Crown is no more than an act of recognition; the court simply acknowledges the
existence and the extent of an obligation; its decision ultimately lacks the executory
effect which is thought, in classical analysis, to define the concept of a judicial
judgment. On the provincial level, the already special position of the Crown is
singularly enhanced. Does it follow that federal authorities cannot claim that judgments
are only declaratory?
3. Generally, this formulation excludes in rem proceedings against the Crown. In the common law
tradition, in rem proceedings apply to property of any kind. As compulsory execution against the
Crown is excluded, it is fair to deduce that no action may be aimed at forced restitution or
dismantlement of a public work belonging to Her Majesty. Immunity from execution goes beyond the
mere impossibility of resorting to traditional means of compulsory execution, but also covers the use of
public force. For public buildings, there is therefore an analogy with the French rule by which
[Translation] "a badly located public work cannot be destroyed." See Di Qual, 1964, and Blaevoet,
1965.
4. See for example Alberta: Proceedings Against the Crown Act, s. 25; Manitoba: The Proceedings
Against the Crown Act, s. 19(6); New Brunswick: Proceedings Against the Crown Act, s. 17(6).
5. See to this effect Nova Scotia: Proceedings Against the Crown Act, s. 15(2); Prince Edward Island:
Crown Proceedings Act, s. 15(4); Saskatchewan: The Proceedings Against the Crown Act, s. 17(2).
In the absence of an analogous express federal enactment this might well appear
to be the case. Although subsection 56(5) of the Federal Court Act states that "[n]o
execution shall issue on a judgment given by the Court against the Crown," and hence
it may be deduced, a contrario, that such a judgment may only be declaratory, such a
deduction is not particularly persuasive. Section 44 of the Act also states that the Court
"may grant ... a mandamus, injunction or order for specific performance ... or a
receiver appointed by the Court in all cases in which it appears to the Court to be just
or convenient to do so, ..." without expressly excluding the Crown. But since
subsection 44 is contradicted by subsection 56(5), which deals specifically with
execution, it is quite likely that the former provision as a whole does not apply to the
Crown. Such a conclusion is supported by Rule 605 of the Federal Court General
Rules, which states that a judgment against the Crown shall be a declaration that the
private individual is entitled to relief. Therefore, on both the provincial and federal
levels, it would seem that only judgments with declaratory effects may be set up
against the Crown. As concerns its exposure to compulsory execution, the Crown in
right of Canada enjoys the same immunities before all Canadian courts.
Besides these basic provisions, there exist, at the federal level, several
complementary statutory rules. For example, section 18 of the Garnishment, Attachment
and Pension Diversion Act provides that "[n]o execution shall issue on a judgment
given against Her Majesty in garnishment proceedings permitted by this Part." Mention
should also be made of subsection 40(1) of the National Harbours Board Act which
states that "[n]o execution shall issue on a judgment against the Board for the payment
of money." These examples could easily be multiplied, especially as concerns the
exemption of pensions or benefits from attachment.^ Similarly, under section 17 of the
Visiting Forces Act, foreign military personnel enjoy complete immunity from
enforcement of a judgment. Basically the same is true for Canadian Forces personnel
under section 225 of the National Defence Act. Finally, under sections 10 and 11 of the
State Immunity Act, foreign States enjoy an immunity from attachment and compulsory
execution in Canada, except — and this is an important proviso — in respect of their
commercial activities.^
B. Recognition of the State's Special Pre-eminence
Despite the clarity of their terms, these various statutory provisions do not by
themselves constitute the true basis for the Crown's immunity from execution. Rather,
6. See: War Service Grants Act, s. 30(1); Veterans Allowance Act, s. 17; Department of Transport Act,
s. 18(1); Western Grain Stabilization Act, s. 25; Prairie Farm Assistance Act, s. 8; Public Service
Superannuation Act, s. 9 (amended expressly by s. 39 of the Garnishment, Attachment and Pension
Diversion Act); Armed Forces Superannuation Act, s. 8(6) (amended expressly by s. 41 of the
Garnishment, Attachment and Pension Diversion Act); Royal Canadian Mounted Police Superannuation
Pension Act, s. 8(6) (amended expressly by s. 43 of the Garnishment, Attachment and Pension
Diversion Act); Merchant Seamen Pension Act, s. 9; Pension Act, s. 23(4).
7. On this statute, see specifically Turp, 1982-83. This article provides interesting references to the
practical and theoretical problems relating to State immunity under national systems. See to this effect
Sucharitkul, 1976; Vincke, 1969; Dresler, 1978.
this basis must be found in the underlying principles which define and legitimize
specific legal rules. Custom may undoubtedly provide some justification, but there
again the simple weight of history and institutions does not provide a satisfactory
explanation. Customary rules only persist because they are based on certain subjective
perceptions which are somewhat confusedly related to reality. Practical realities
contribute to the formation of a customary rule, and as long as a rule is believed to be
valid, nothing will challenge its existence. Apart from the simple passage of time, a
customary rule evolves from an original situation which requires a distinct rule. In the
case of immunity from execution, then, we must examine the facts and reasons which
account for the recognition of this allegedly exceptional situation. Here the arguments
in favour of immunity are no more than peremptory.
1 . Monopoly of Constraint
Quite apart from the theory of the special pre-eminence of the State, immunity
from execution can be justified by arguments which seem to preclude debate. Recourse
to a reductio ad absurdum is the most important of these. It would be a complete
absurdity to make the State, which is the supreme public authority, subject to its ownpower of constraint. As Robertson observed earlier this century, "The King by his writ
cannot command himself" (1908: 2). Even today, many commentators are bemused at
the thought of the State using its own police forces to compel itself to perform or
abstain from some act. This rationale should not be lightly dismissed, because the State
alone possesses the means of organized constraint, in the form of the army and the
police forces.*
The State's monopoly is in no way affected by the presence of private security
services. These only exist by virtue of State authorization, and their operations are
subject to Government approval. In modem legal theory, the very idea of institutional
constraint or organized force is held to derive essentially from the State. ^ The principle
that no one may take justice into his own hands implicitly supports this view. The State
alone has the power to coerce, a power that jurists such as Dicey see vested theoretically
in Parliament and the judiciary. But by its very nature, this coercive function is
principally the province of the Executive and the Administration. They alone have the
physical means to carry it out. Enforcement implies discretion and adaptation to
specific circumstances, tasks that only the Executive is well suited to perform. This
discretionary element helps explain why the courts, despite their authority to adjudicate,
have never been permitted to compel individuals directly. They may order that
compulsion be deployed, but must rely on intermediaries to effect it.
In a statement that remains valid for most contemporary States, Vedel and Delvolvé point out that:
[Translation]
Neither the courts nor the individual may use armed force. In principle, the executive branch mustassist in the execution of judgments and similar acts, something which takes place under its
responsibility and direct authority. Therefore the role of organized constraint within the State
belongs to the executive branch. It is not alone with a duty to enforce the law, but it is alone in
being able to use force to ensure compliance (1982: 57).
[Translation] ' 'The law of public power . . . encompasses an idea of power and strength that is
identified with the very concept of the State" (Hirt, 1954: 968).
To the extent that many jurists consider the Crown to comprehend the State and
the Executive, '° it is this institution which is the ultimate source of the coercive power.
The assimilation of the State to the Crown is no accident, since in the past all public
power {imperium) was exercised by the Sovereign personally. Some of this imperium
still exists, by virtue of the royal prerogative, in the Crown's exclusive power to
command the armed forces. The modem Crown, however, is a legal fiction from which
the coercive power of the Administration is derived. French administrative law has a
similar notion, with its concept of puissance publique', so too German administrative
law, with its concept of Eingriffsverwaltung
.
A like observation may be made about judicial power, because historically the
courts were principally the King's courts. Far from being opposed to the courts'
powers, the King's power of coercion is the tangible underpinning of judicial authority.
The Crown assures the independence and authority of the judiciary. History suggests
why the dependence relationship cannot easily be reversed to permit courts to dictate
Crown conduct. Even if the history of English law shows the powers of Parliament and
the courts to have been gradually taken from the Crown, the latter still possesses a
special pre-eminence.
The Crown may have lost the core of its curial and "legislative" powers (royal
ordonnances), but its ultimate authority still remains and all components of the State
apparatus are derived from it. The invention of the concept of the State during the
Middle Ages provided the rationale for the Sovereign progressively to take over all
powers (legislation, justice, police, allegiance) that previously had been dispersed
throughout the feudal system. But this does not mean that today the Crown alone, in
the person of the Monarch, possesses an unlimited power, which pre-empts and
dominates all State functions. State power is legally limited by the Rule of Law(Preamble of the Constitution Act, 1982). Consequently, there is more than mere self-
limitation on the power of the State: [Translation] "The State does not limit itself; it
is bom limited."" Only during periods of crisis or emergency do these limits give wayto a legally limited exercise of State power. Such events permit a return to the very
origins of the power via the Administration and the Govemment. Even if the Canadian
Charter of Rights and Freedoms must be respected in the ordinary exercise of
governmental coercive power, the power itself remains an autonomous reality somewhat
confusedly identified with the concept of the Crown. Through its link to the Crown, an
important part of the federal Administration avoids, at least theoretically, any form of
legal constraint on its power. Yet this is paradoxical, since principles such as the Rule
of Law and separation of powers require that the Administration be subject to judicial
review.
In addition to these customary and historical justifications for immunity from
execution, neo-positivist conceptions of the State provide another rationale. Like the
premises of a syllogism, this rationale may be stated as follows:
1
.
There can be no recourse to public force against the State (major premise).
2. But the Crown symbolizes the State, and ultimately, it wields the State's power
of constraint (minor premise).
10. Hogg, 1977: 164; Griffith and Street, 1973: 246; Mr. Justice Beetz in The Attorney General of the
Province of Quebec v. Lxihrecque 1082; Laskin, 1969: 117-9.
11. [Translation] "The State is limited by law because its very own power is conditioned by the idea of
law which legitimizes it" (Burdeau, 1949: 286).
10
3. Therefore, the Crown cannot be compelled in any way (conclusion).
Of those considered, this kind of rationale is the most convincing. Any attempt to
modify the principle of immunity from execution sooner or later confronts the superior
and absolute rationality upon which it seems to rest: it would be absurd for the Crownto be compelled by its own power to perform or abstain from some act.
2. The Budgetary Authorization Rule
The budgetary authorization rule is certainly no basis for immunity from execution,
but it is directly derived from the same basis, being a consequence of the Rule of Lawand separation of powers principles. In theory, the Administration cannot act without
Parliamentary authorization. Hence, were it to comply with a judgment without
Parliamentary authorization, it would be acting illegally.
The budgetary authorization rule requires that all expenditures by the Administration
be previously authorized by Parliament (Garant, 1985: 373). Historically, this rule was
expressly directed to the Crown (Campbell, 1969: 138; Street, 1949). But today, even
though the Financial Administration Act alludes several times to Her Majesty's spending
power (sections 25, 33 and 36), it also states that the budgetary authorization rule
applies to the entire Administration, even those parts which are not Crown agents
(section 19).
To resist execution of a judgment, the Administration shields itself with this
requirement, refusing to make a payment which has not previously been authorized.
Respecting the principle of authority of res judicata would compel it to act illegally
(Le Brun and Déom, 1983: 268). This potential loophole exists not just for simple
money judgments. All the Administration's activities are constrained financially. If the
courts order it to perform some act, the Administration might claim that such
performance goes beyond its normal activities, and entails additional costs and
expenses. Here also, the budgetary authorization rule could be just as crippling.
Is the budgetary authorization rule as much of a constraint as has been suggested?
"It is the general practice throughout the Commonwealth, in statutes authorizing suits
against the crown, to provide that judgments against the crown are to be satisfied only
by grants made by Parliament for that purpose" (Street, 1949: 40; see also Stewart,
1979: 818). To standardize and simplify the process of payment of judgments. Crownproceedings statutes generally specify that the Minister of Finance may or shall pay
sums awarded by a court from public funds. But do such declarations amount to
Parliamentary authorization for unanticipated expenses? The drafting of someenactments may provide guidelines. For example, subsection 57(3) of the Federal
Court Act provides that "[t]here shall be paid out of the Consolidated Revenue Fundany money or costs awarded to any person against the Crown in any proceedings in the
Court." The Administration may accordingly comply with a money judgment without
any specific authorization, since the enactment is only a direction as to how funds are
to be drawn. But as subsection 17(2) of the Crown Liability Act illustrates, it is still
necessary that the Administration be required to pay. Subsection 17(2) states that
"[u]pon receipt of a certificate of judgment against the Crown ... the Minister of
Finance may authorize the payment out of the Consolidated Revenue Fund of any
money awarded by the judgment to any person against the Crown under this Act." This
subsection is not clear about whether there is an actual obligation to make payment.
11
Could the Minister invoke accounting requirements to postpone payment to another
fiscal year? Could he make a series of installment payments so as not to exceed the
limits of various budgets? Whatever the situation where the Crown is debtor of a moneyjudgment, the budgetary authorization rule can become a real obstacle when the
Administration is ordered to perform a specific act. Supplementary work or repairs maywell involve expenditures that exceed budgetary resources for a given financial year.
The scope of the budgetary authorization rule is not nearly as clear as would be
hoped. However, since in some cases it might eventually be involved as a legal
justification for refusing to comply with a judgment, it must be taken into account in
this analysis.
3. The Idea of Special Pre-eminence
Such themes as monopoly of constraint and budgetary authorization suggest a
rationality to the immunity from execution principle. Other equally powerful arguments
are founded on a particular conception of the State. Immunity from execution may be
viewed as one of the attributes of sovereignty. Here we are not concerned with
sovereignty in its external or inter-State dimension, but rather with how it is distributed
within a State. With respect to the balance of power between institutions, its import
may vary considerably, and given the absence of a general theory of the State, certain
of its aspects remain obscure. Nevertheless the Executive and the courts do not enjoy
equal sovereignty.
(a) Paramountcy of the Executive
Once again, the uniqueness of English institutions is of crucial importance here,
with history revealing that the judiciary has not really been understood as vested with a
part of State sovereignty. Originally, sovereignty was located solely in the Monarch
himself. In the Middle Ages, canon law jurists began to apply the political conceptions
of the late Roman Empire {dominium and impehum) to develop a theory, according to
which State and sovereignty inevitably coincide in the physical person of the King.
Thereafter, the concept of sovereignty was thought necessarily to presuppose a material
and conceptual unity that excluded any possible division. This association of sovereignty
and the Crown was so strong that as late as 1765, Blackstone said that "the law
ascribes to the king the attribute of sovereignty, or pre-eminence" (p. 234). And yet
we know what had already become of this regal sovereignty. With the Parliamentary
revolutions of the seventeenth century, the Crown was forced to relinquish an important
part of its authority. However, this concession amounted to a sharing, not a total
abdication of sovereignty. Indeed, even if the common law system is governed by
principles which proclaim Parliamentary sovereignty and which subject the Crown to
the law, royal institutions still remain the source of sovereignty in the State. Orthodoxy
in English public law defines sovereignty as "the Queen in Parliament," a somewhat
peculiar expression which captures the hybrid power sharing between Executive and
legislative organs. '^ Even today the Monarch personally exercises a part of this
12. "[W]e continue to speak of legislation enacted by the Queen in Parliament, of executive powers
exercised by Her Majesty's Government, of justice administered in the Queen's courts" (Wade and
Phillips, 1980: 233).
12
sovereignty in the form of the royal prerogative (de Smith, 1981: 145 ff.; Wade and
Philipps, 1980: 233 ff.). Through its association with the Crown, the Government
possesses its own powers and means of coercion which make it the true centre of power
today. Even if, for political and ideological reasons, constitutional theory emphasizes
the role of Parliament and the courts, in reality the common law system assumes the
paramountcy of the Executive.
If one considers only the theoretical requirements of the Rule of Law, the courts'
constitutional status seems to be identical to that of the Executive. Does this then not
suggest that courts derive their authority from Parliament? A study of the constitutional
basis of judicial review shows that things are more complicated. Historically, the
judicial function emanated from the person of the Sovereign, and this original link has
never fully been severed. Initially, justice was administered directly by the King in his
Curia Regis as first lord of the Kingdom (Turner, 1968: 15). The judicial function
represented a component of sovereignty because courts were empowered to settle
disputes and state the law. Though it is still clear today that judicial authority flows
from the Crown, the intervention of Parliament has ensured a measure of judicial
independence.'^ While English courts managed to acquire a degree of autonomy prior
to 1701, their independence was truly secured with the Act of Settlement, 1701 (Strayer,
1983). For their administrative operations, and for the appointment of their judges, the
courts still depend on the wishes of the Executive (Hood Phillips and Jackson, 1978:
377), which is legally "the Crown in its Executive role." Since the authority of the
judiciary is derived from two sources, the Crown and Parliament, the courts cannot be
seen as exercising independent sovereignty. They are only sovereign for the specific
requirements of their judicial function.
These observations suggest reasons for the considerable differences in the roles of
State organs, even if they all exercise some element of sovereignty. These differences
imply a complex hierarchy of relationships. The fact that the judicial function does not
enjoy the same status as the Crown is too easily forgotten. The problems experienced
by the courts in dealing with acts resulting from exercise of the royal prerogative reveal
their inferior status. When the Administration exercises that element of sovereignty
flowing directly from the Crown, it too is accorded a pre-eminence which is totally at
odds with widely held views of the relationship of Executive and judiciary. When the
Administration can claim the legal status of the Crown, it accedes to a higher
sovereignty within the State and may set up the Crown's own privileges and immunities.
In recognizing such a status. Parliament must be taken as intending to grant the
Administration a special pre-eminence, subject to review only by the Executive
(Canada, LRCC, 1985: 17).
(b) Primacy of the General Interest
This pre-eminence of the Administration via the Crown materializes in the partial
exclusion of ordinary law. Special rules apply to special situations — as if the idea of
differentiation were naturally predetermined. What is more, the progressive elimination
of royal prerogatives has caused problems, because many of these privileges have
13. For a synthetic view of this evolution, which culminated in the seventeenth century after a long series
of battles between the King and the courts, see specifically Vallières and Lemieux, 1975-76: 270-8.
13
simply been transferred to the Executive. The Crown is still held to be vested with
sovereignty and authority. The Crown reflects the notion of jus eminens, by which the
rights of the State are higher and prevail over those of the individual.
Legal theorists have proposed a variety of approaches to prevent this pre-eminence
from becoming too absolute or excessively authoritarian. With the advent of legal
positivism, theocratic explanations of sovereignty have been replaced by so-called
"objective" considerations. Austin refers to "the sociological reality of power" (Lloyd,
1981: 177). Kelsen (1962: 272) refers to a "hypothetical fundamental standard"
(Grundnorm) from which all power within the State is derived. That is, sovereignty is
justified differently today. It is presented more as an expression of the imperatives of
the general interest than as a form of transcendent authority (Lloyd, 1981: 170). This
general interest approach is a rather easy expedient for justifying State immunities. It
links sovereignty to the public interest which, by its very nature, requires procedures
and institutions which prevail over private interests (jus publicum privatorum pactis
mutari non potest). But such a view completely turns the tables. The State's special
pre-eminence is claimed to be needed to meet the needs of the general public interest.
Yet this really amounts to its taking precedence over individuals in order to serve them
better. In this public interest conception, then, all that remains of the idea of sovereignty
is a functional dimension by which the ends determine both status and means. The
current concept of Crown agent rests on a similar logic, in that it justifies granting
special authority to an administrative entity to achieve general public purposes. Whether
it is merely a pretext or a concrete reality, the idea of general public interest fuels
rhetoric which is unfavourable to improving judicial review (Kerr, 1981: 7). Public
utility and general interest thus appear as concepts derived from royal absolutism. They
simply suggest a more social and democratic justification for the privileged status of an
important part of the Administration, something that only further inhibits the process
of reform.
Subjective (and rhetorical) obstacles to modifying the principles of immunity from
execution, therefore, are just as formidable as those that show a rational face. Indeed,
would allowing compulsory execution not weaken State authority, or negate imperatives
originating in the search for the common good? We must ask whether those
preoccupations guide the courts in refusing to question this aspect of Crown immunity.
II. Favourable Judicial Interpretations of Immunity from Execution
For the most part, courts rarely question the principle of immunity from execution;
they thereby reinforce it. Moreover, there is little case-law on the subject, so that
existing precedents may not be representative. But there are few precedents in many
areas of Anglo-Saxon administrative law. Subjective factors are probably responsible
for the paucity of litigation. Because lawyers are convinced of Crown immunity, they
will hardly risk challenging it with execution proceedings that are doomed to fail. The
rare precedents which do exist are genuine test cases, where the court is confronted
with novel situations.
In both Canada and the United Kingdom, the courts rarely see cases of an outright
refusal by Government authorities to comply with a judgment. Often the problem of
14
non-compliance only arises incidentally. This further complicates the search for
precedents. At the beginning of the century the Privy Council considered whether an
action in rem could be brought against a ferry boat owned by the Crown for payment
of the costs of a rescue operation. The Judicial Committee concluded that the ferry was
exempt from seizure. Relying on the principle by which "it is impossible to contend
that the King can be impleaded in his own Courts," it concluded that "it is, therefore,
impossible to maintain that the power of seizing a vessel belonging to the Crown can
be exercised as against the Crown." '^
The most important recent case is unquestionably Franklin v. The Queen (No. 2).
This dispute was part of the aftermath of Rhodesia's unilateral declaration of
independence. Mr. Franklin held Rhodesian bonds for which he had not received a
penny since 1965. At trial, he managed to obtain a favourable judgment which was to
be executed "by the registrar or other agent of the Government of Southern Rhodesia
having possession in England and Wales of moneys of the said Government ..."
(Franklin v. The Queen (Note) 205). The registrar was in fact the Bank of England,
and it could only return 41 pounds to the petitioner instead of the 219 pounds which
had been awarded for unpaid interest. In the second case, Mr. Franklin proceeded by
petition of right'^ to compel the Bank of England's head accountant to submit to a post-
judgment examination. An appeal from a decision refusing this incident of compulsory
execution was unsuccessful. Lord Denning dismissed the appeal on the grounds that
the first decision (Franklin (No. 7)), was merely a declaration of right, something
which "is not a mandatory order" [for the payment of money] but is declaratory of the
right of the suppliant. "It has never had to be enforced by means of a writ of
execution. It is always presumed that, once a declaration of entitlement is made, the
Crown will honour it. And it has always done so. Furthermore the Crown is not a
'judgment debtor' in any sense of the words" (p. 218). Lord Denning' s rationale very
clearly strengthens the special immunity that the Crown enjoys. Because the Crown is
always presumed to be a good debtor, reform of the immunity from execution rule is
unnecessary.
Earlier precedents are to the same effect as Franklin (No. 2). Dominion Building
Corporation v. The King concerned a Canadian dispute in which the Crown in right of
Canada was in breach of contract. The problem of compulsory execution is often raised
quite sharply in contract litigation because the private individual who has contracted
with the Administration seeks, above all, execution of the agreement (specific
performance). Hence, the question arises whether orders for specific performance maybe made against the Crown. In Dominion Building Corporation, the Judicial Committee
excluded the possibility proprio motu: "It is no doubt true that an operative order for
specific performance cannot be made against the Crown" (p. 548). But their Lordships
attempted to overcome the difficulty by noting their jurisdiction "to make a declaration
14. Young V. S.S. "Scotia" 505. The judge goes on to say (pp. 508-9):
While, therefore, on the one hand their Lordships think that it was quite right to raise the question
of the Crown's privilege in this case, they would deeply lament to learn that the Canadian
Government, when the circumstances are brought to their attention, refused to give effect to the
hearty recommendation of the Court below, which their Lordships desire emphatically to indorse
and to repeat.
Powerless to compel the Crown directly to remit an indemnity, the only alternative available to judges
is expressions of sentiment.
15. As required by The Colonial Stock Act, 1877.
15
as to the right of the subject to specific performance if the circumstances justify it"
(ibid.). Garant concludes that [Translation] "the courts may by declaratory judgment
declare that the petitioner is entitled to specific performance" (1985: 386-7).
Nevertheless, a declaratory judgment provides no real promise of execution, because
by its very nature it cannot be enforced. The fact that declaratory action cannot sustain
execution process was, in fact, noted in Franklin (No. 2).
Canadian courts have also shown great respect for the principle of immunity from
execution. The leading case is still R. v. Central Railway Signal. The Central Railway
Company sought by distress to take back many of the assets and materials of the
Canadian National Chemical Works. These had been confiscated by Her Majesty for
violation of the Excise Act. After noting that the effect of confiscation was to give the
Crown "the absolute property of the thing forfeited," Mr. Justice Duff quashed the
seizure: "[0]f course, no order can be made against the Crown in such proceedings in
the sense in which an order can be made against a subject" (p. 563). The court
expressly held that the term "proceedings" encompassed the "specific recovery of
goods, recovery of land, ... the enforcement of contract, ... the enforcement of such a
right as a landlord possesses in the goods of his tenant ..." (ibid.). Mr. Justice Duff
also cited Blackstone to the effect that "no process of execution can issue against His
Majesty or His Majesty's property from any of His Majesty's courts" (p. 564), and
endorsing comments by Maidand (Pollock and Maitland, 1968: 514), he added that:
"It has sometimes been said that this immunity of the sovereign from processual
coercion ... [is] 'the grandest of his immunities'" (p. 564).
It is hard to join issues when a principle is stated so categorically. The tenor of
the judgment might even be seen as implying that the court is the defender of the
Crown's privileged status. Even today many judges remain just as convinced of the
principle of immunity. In 1958, Mr. Justice Rand of the Supreme Court had no
hesitation in stating that the idea of subjecting the Crown to the ordinary law "is
repugnant to the principle of immunity ..." (C.B.C. v. Attorney General for Ontario
198). More recently, in 1976, Mr. Justice Mayrand of the Québec Court of Appeal
concluded that [Translation] "the sound administration of justice demands the
respect ... of the prerogatives that our law accords to corporations or agents of the
Crown" {Commission d'assurance-chômage c. Cour provinciale).
The same year the Federal Court ruled clearly that Crown assets, specifically those
of the Canadian Broadcasting Corporation, were exempt from seizure.'^ After first
noting that "the effect of any judgment against it can only be declaratory" (p. 148)
and not enforceable, Mr. Justice Addy added this important clarification:
[I]t has long been established in case law that the Crown can only lose its prerogatives
under an Act which contains a clear and precise statement to that effect, and that any Act to
which a party attempts to ascribe such a result must be interpreted in favour of the Crownand against whoever alleges that it has renounced its prerogatives, (p. 149)
The presumption that legislation should be interpreted in favour of the Crown also
shows up in cases dealing with garnishment of its employees' wages. Even though the
16. Public Service Alliance of Canada v. C.B.C. As authorized by a writ of fieri facias, property of a
Crown corporation was seized following registration of an arbitrator's decision. The judge decided that
the writ was void ab initio, the seizure was quashed and any executory proceeding also forbidden.
16
Garnishment, Attachment and Pension Diversion Act considerably modifies the extent
of Crown immunity,'^ cases under the Act are still useful in explaining the origins of
existing principles.
Relying principally on the fact that garnishees are "Crown servants," the courts
have taken it for granted that public servants accede to the Crown's immunities. This
attitude raises, on an individual level, the problem of Crown agency or Crownmandate. •*
Some dissenting opinions from an earlier period might well have led to a different
law today, but they have not been followed.'^ In the absence of an express provision to
the contrary, exemption from seizure has remained the rule to this day. Some judges
have proposed a rather feeble alternative, the declaration of right, ^^ but since this
recourse is merely declaratory, the problem of direct execution against the Crowninevitably recurs. In a significantly typical judgment {Barre v. Fortin), Mr. Justice
Barbes of the Québec Superior Court refused to allow any seizure against
[Translation] "the Sovereign's assets" because "no order aimed at forcing HerMajesty is valid in English law" (p. 139). The judge also made some particularly
significant observations by way of explanation for the rule:
[Translation]
This proposition is based on the attributes of the Sovereign, who is only answerable to God.
Rex est vicarius et minister Dei in terra. And Her Majesty's courts have no authority to
give orders to her, even in civil matters. The jurisdiction of the Court is based on the
existence of the authority to enforce it; but who can impose the effect of the exercise of
authority on the source of that authority?
It is because of the very authority of the Sovereign, of its dignity, which cannot suffer an
equivalent or higher authority, that the Sovereign is immune from a court order. {Ibid.)
17. In Québec the principle of garnishment against the Crown was admitted in 1875 {An Act to render
liable to seizure a portion of the salaries of Public Officers and Employees). The legislator beat a
retreat in 1897 in making [Translation] "salaries of public officers" (section 599.9 of the old Code
of Civil Procedure) exempt from seizure. On this subject see Perreault v. McCarthy; Lépine v.
Gauthier; Gingras v. Vézina; Lovejoy v. Campbell; Lelièvre v. Baillargeon; Robinson v. Quinn andCasgrain. This case-law is based on the principle that funds destined for public purposes, for example
the payment of contract for the construction of fortifications, remain exempt from seizure: Fitts v.
Pilon. See also Shaw v. Bourget; Beauchemin v. Fournier; Evans v. Hudon and Browne; Crevier v. DeGrandpré et Lamothe; Dame St-Amand v. Decelles.
18. In Fortier v. Cholette, the court of appeal specified that it is [Translation] "basically the King whoappears by means of his officer .... Unlike an individual, the Crown cannot be required to pay, out of
the defendant's salary, the amounts necessary to enforce the judgment" (p. 517).
19. Even if in C.N.R. v. Croteau the Supreme Court did allow the validity of a garnishment order directed
against the C.N.R. , it was only a means of a literal construction of section 15 of the Act (S.C. 1919,
c. 13) which has become section 44 of the Canadian National Railways Act. On the level of general
principles, Mr. Justice Duff clearly noted "the inability of the courts to make an order against the
Crown," and shortly afterward he added that "[t]he process involves no order against the Crown"(p. 388).
20. In 1935, Mr. Justice Bouffard of the Québec Superior Court suggested that garnishment was allowed
against a minister of the Crown provided some formal requirements were respected, specifically
proceeding by declaration of right: Blanchet v. Blanchet. He was careful to add that in such
proceedings, any formula with a penalty for non-compliance was banished in favour of [Translation]
"a simple prayer addressed to the minister of the Crown" (p. 545). See also Boileau v. Boileau Ltée.
17
Not all judges rely on this type of argument, even though their decisions usually
confirm the principle of immunity. ^^ In all too few cases, judges have rejected
established theories (Martin v. Martin; Re Kraw and Kraw), and when they doinevitably they confront the principle by which a court cannot make a binding order
against the Crown. In other words, to take an example, while the courts are prepared
to hold that garnishment of a teacher's wages is not contrary to public order, they have
not dared to question their lack of jurisdiction to issue orders to Her Majesty (Royal
Bank of Canada v. Scott).
This study of the cases highlights an important point. Whether the issue is liability
in tort or compulsory execution, the judicial arguments are often similar in nature. Not
so long ago, a judge could say that no proceedings could issue against Her Majesty,
apart from the recognized exceptions. Such arguments are consonant with the ideas of
Blackstone, by which "no suit or action can be brought against the sovereign, even in
civil matters, because no court can have jurisdiction over him" (1765: 235). Today, to
justify refusal of compulsory execution against the Crown, judges still rely on this type
of argument. The Crown's special immunity from execution is, consequently, nothing
other than a contemporary manifestation of the general immunity it previously enjoyed.
The reforms undertaken in 1953, with the enactment of the Crown Liability Act, and in
1970, with the Federal Court Act, only constitute exceptions to the basic principle of
immunity of Her Majesty before the courts. If public authorities have been more or
less forced to adapt to a scheme of partial liability, the same cannot be said with
respect to compulsory execution, where courts have rejected any liberalization of the
rule. This immunity, then, is merely a holdover from a period when the constitutional
bases of judicial power were still poorly entrenched with respect to the Crown, the
latter institution being too closely associated with the Monarch as an individual.
The rhetoric of the cases shows the extent of the psychological and legal obstacles
in the way of reforming the principle of immunity. Until it is acknowledged that the
real beneficiaries of this immunity are simply the Administration and the Government,
informed debate is unlikely. In direct confrontations with the Crown, courts will not
reverse longstanding constitutional principles. The judge's position is most delicate
since he is not at liberty freely to reassess principles unchanged since the twelfth
century! Immunity, as conceived by medieval jurists and theologians, remains the rule,
and any exceptions are, at most, concessions or adaptations that do not challenge its
very existence. Given this context, it is hardly surprising that individuals have difficulty
pursuing execution remedies against the federal Administration.
Section II: Absence of Legal Safeguards relating
to the Execution of Judgments
Immunity from execution is both varied and complex, resting as much on judicial
attitudes as on official enactments. Yet the Crown's immunity from execution is of no
great moment if execution creditors have other recourses to ensure compliance with
21. H.F.C. of Canada v. Dubois; Hamel v. Théorêt is only an isolated case. Likewise, for the English-
Canadian provinces, see Re Hamill and C.N.R.; Bonus Finance Ltd. v. Smith.
18
judgments rendered. Unfortunately, these alternatives do not really give the individual
an adequate remedy for direct non-compliance by the Administration. The judgment
creditor's situation is even more precarious because, even if alternatives existed, they
might be rendered ineffective, given the complexity of different types of non-
compliance. To gain a realistic appreciation of the effectiveness of alternatives to
compulsory execution, it is necessary to examine strategies by which the Administration
can deny or reduce the scope of a judgment.
I. The Phenomenon of Non-Compliance with Judgments
The phenomenon of non-compliance in administrative law does not assume the
same significance as in its private law analogue. In the former case, the party refusing
to comply with a judgment typically is the State itself. Therefore the problem must be
approached from a completely different standpoint. Even if public authorities are
execution debtors, they are not subject to the ordinary legal regime applicable to
debtors. Indeed, to a large extent public authorities may unilaterally shape this legal
regime in individual cases. That is, they have the power to frame the issue in dispute,
either by consenting to the application of pre-existing legal rules to a fixed fact pattern,
or inversely, by changing either or both the law or the facts so that litigation no longer
serves any purpose. Consequently, non-compliance in administrative law is a
complicated and diffuse phenomenon.
A. Limits of the Existing Legal Regime
At an early stage in Continental administrative law, particularly in France, legal
theorists began to study non-compliance with judgments by the Administration (Defert,
1910; Barthélémy, 1912; Boulard, 1932; Laurent, 1941; Tari, 1933). Numerous cases
of non-compliance led them to question whether orders of the Conseil d'Etat actually
had executory force (Braibant, 1961; Lefas, 1958; Rivero, 1951; Montane de la Roque,
1950). Indeed, the French administrative judge [Translation] "with respect to the
Administration had neither the power of injunction, nor of substitution, nor the
possibility of compulsory execution process" (Weil, 1952: 58). The principle of the
independence of the Administration meant that the judge could not directly compel the
Administration to comply with final judicial orders. In effect, he could only pressure
the Administration by imposing fines, awarding damages, or by systematically vacating
(or quashing) Administration countermoves. Within such a context, it is hardly
surprising that some judgments were simply ignored by the Administration in the nameof the public interest and the sound operation of public services. These problems were
apparently resolved by the major reform of July 16, 1980, a reform to which we shall
return later.^^
In systems based on the English constitutional tradition, the Rule of Law and the
principle of separation of powers ought to rule out such administrative freedom. In its
22. See infra, the discussion in Chapter Two.
19
logical sense, the Rule of Law implies a hierarchy among State organs (Brun and
Tremblay, 1982: 480). Thus, administrative action is normally subject to judicial
review. In this tradition, the authority of courts is often considered an accomplished
fact, as the comments of some judges indicate. In MacQuarrie, Mr. Justice Gillis refers
to Fry's praise of the declaratory judgment in the area of specific performance but Fry
adds, "although there might, perhaps, be some difficulty about enforcing such
performance, in the unthinkable event of the Crown refusing to comply with the
judgment" (1911: 65). Yet this "unthinkable event" is not all that improbable, if a
judgment orders public authorities to suspend major public works. For example, in
1973 in the James Bay case, the Québec Government was able to avoid the
consequences of the judgment by Malouf J. by filing an appeal. In Québec law, an
appeal by the Crown always suspends the decision appealed from {Société de
développement de la Baie James c. Kanatewat). If hypothetically the judgment had
been final, it is hardly likely that the Government would have stopped construction, on
which several hundred million dollars had already been spent. Considering the financial
cost of certain undertakings, or their political importance (for example, nationalizations),
the Administration may well encounter situations where it has no other choice but to
refuse to execute a judgment. On occasion courts have foreseen this possibility, as the
Société Asbestos Ltée case shows. Seized with an application for an interlocutory
injunction against the Société nationale de l'amiante, Mr. Justice Lajoie stated that it
would be improper to refuse an injunction on the basis that the Government might
eventually refuse to obey the court's order. He considered that, were the Government
to do so, its actions would [Translation] "weaken the foundations of the legal
system that governs our society" (p. 350). He believed that [Translation] "the
legislator and the Government still consider themselves bound by the decisions of the
courts, if not by coercion at least morally and legally" {ibid.). Thus conscious of the
real limits of its authority, the court was driven to invoking fundamental constitutional
principles in response to a perceived threat of non-compliance.
Despite the genuine or presumed good conduct of the Administration, rules of
Canadian administrative law do give considerable latitude to public authorities as to
how they will comply with judicial decisions. In other words, the current system is
problematic and could well lead to cases of non-compliance if there were a major
disagreement between Administration and judiciary. Yet some jurists still presume the
contrary. In Franklin (No. 2), Lord Denning noted simply: "It is always presumed
that, once a declaration of right is made, the Crown will honour it. And it has always
done so" (p. 218). In English law, this serene and almost mythical portrait of the good
conduct of the authorities has been sharply contested by Harlow (1976). She observes
that, without resorting to pure and simple non-compliance, the Administration may still
deprive a judicial decision of its essence {id.: 117). In such cases formal compliance is
only a hollow gesture, [Translation] "the Administration twisting the decision and
making it practically inoperative by one of the many gambits to which it is privy"
(Fayolle, 1926: 32). She concludes, after studying the situation on both sides of the
Channel, that "experience in both England and France suggests that recognized
techniques exist for the circumvention of court orders" (1976: 117). In other words,
the possibility of administrative runaround puts not only the usefulness, but also the
very point of judicial remedies, into question.
Canadian commentators have begun to show some interest in this problem
(Lemieux, 1983: 7-25). Sometimes the individual may only win a "moral victory"
over a public authority, because the latter will [Translation] "take substantially the
20
same decision again, after having corrected the irregularities that led to it being
quashed" (ibid.). But even granted these more subtle diversionary techniques, direct
non-compliance also remains a very real possibility (see the MacQuarrie case). The
problem of execution of judgments must be taken seriously, not only because
individuals lack certain fundamental safeguards but also because questions arise
concerning the appropriateness of maintaining immunity from execution in its present
form.
B . Types of Administrative Response
The Administration may deploy a variety of tactics to counteract a court decision.
These include both overt resistance where public authorities either ignore or defy a
judgment, and covert or more discrete responses (passive resistance), such as
incomplete or delayed execution, or even ratification of the vacated act.
1 . Overt Resistance
In France, direct refusals to comply with judicial decisions are relatively morefrequent than in other Western countries. Usually, it is minor officials or mayors of
small communes who "rebel," typically out of pride or electoral opportunism (Weil,
1950: 384). But sometimes even central authorities refuse to comply. ^^ Quite often the
Administration systematically refuses to reinstate public servants who have been
illegally dismissed (Braibant, 1961: 61; Lefas, 1958: 84). Here one frequently
encounters genuine duels between the courts and the Administration — a war of
attrition fought over the systematic repetition of decisions to quash (Fayolle, 1926: 37).
But the situation in France should not be caricatured. The key point is that political
considerations may interfere with the voluntary execution of a judicial decision. This
danger exists today in Canada. The Crown is truly independent of the judiciary, in a
manner analogous to that reflected by the French principle of administrative
independence from curial decisions. ^'^
According to Montesquieu's analysis, the various functions of the State are distinct
from, and independent of, each other. This is particularly true of the courts.
[Translation] "In other words, the principle of separation of powers which, as wehave seen, is meaningless under our constitutional system with respect to legislative
and Executive functions, takes on some significance with respect to the judicial
23. The famous S.A. des Automobiles Berliet case is an example, in which, after an initial decision of the
Conseil d'État dated July 22, 1949, the entire Government replied a week later with an interministerial
order directly contradicting the decision rendered. On December 28, the Conseil d'État again took the
same decision, severely censuring this defiance of res judicata. C.E. July 22, 1949, Rec. 368; C.E.
December 28, 1949, Rec. 579; S. 579; S. 1951.3.1 (Concl. Guionin, note by Mathiot); Note by Weil,
1950.
24. In France, this principle is linked to the historical circumstances at the time of the creation of the
Conseil d'État, this institution gradually becoming removed from the Administration itself. Hence the
prohibition for the administrative judge [Translation] "to behave as an administrator." As a result,
the judge cannot order the Administration how to behave, the latter being free to submit voluntarily to
the requirements of legality. See Chevallier, 1970 and 1972.
21
function" (Brun and Tremblay, 1982: 513; see also Humphrey, 1945-46). Judicial and
administrative functions cannot be confused, even if there are points where they
overlap, and even if their decision-making procedures are becoming increasingly similar
(Brun and Lemieux, 1977). The separation of powers doctrine means that the courts
cannot direcdy usurp administrative discretion either by taking a decision on the merits
of a given case, or by ordering performance of specific acts. To suggest the contrary
would imply a confusion of functions and judicial interference in the internal operation
of services (Artur, 1900). The role of the judge is to determine whether the law has
been broken, and if so, to sanction its violation by quashing an impugned act. He maycommand the Administration to respect the Rule of Law, but he cannot dictate the
latter' s conduct, or even sanction a refusal to comply with a judgment by dictating the
specific measures which the Administration must take.
Where there is overt resistance by public authorities, courts nevertheless possess
formidable power. They may quash any act that direcdy violates the substance of the
first judgment. If the Administration intends active and overt non-compliance, its defeat
would often be inevitable because courts may quash, or at least seriously limit, non-
complying behaviour. On the other hand, the Administration may more effectively
resist through passive non-compliance since the courts have no meaningful sanction for
non-feasance."
2. Passive Resistance
Passive resistance may take three forms. First, the Administration may take its
time complying with a judicial decision; in general no time-limit for execution is
imposed. An even more effective gambit is to leave the judgment creditor with the
impression that compliance will be forthcoming when it really has no such intention.
Unlike non-compliance through ratification, here the Administration is simply adopting
a common technique of private law litigation. Should more be required from the State
on the basis that it should always be a good debtor? Should a reform be limited only to
suppressing administrative practices? Assuming that we challenge the State's entitlement
to certain special immunities, it can also appear questionable to subject it to
discriminatory treatment. Finally, the State may try to outsmart its creditor just like any
private law debtor.
(a) Delay
Although some delay is inevitable in any system of adjudication, it also results
from external causes. Like any private person, the Administration may delay execution
of a judgment by appealing a decision. As there can be no provisional execution
against the Crown, an appeal is always an effective dilatory proceeding. Any lawsuit
involving the State may take considerable time, in particular because of the financial
resources of the State.
However desirable this may be, it is difficult to reform the law to prohibit
proceedings which have no purpose other than to delay or inconvenience the opposing
25. This resistance above all takes the form of prolonged silence. As Delvolvé notes, [Translation]"rarely does the Administration take the initiative in outright refusal to comply with a judgment: not
only does it take no initiative to execute, it takes no initiative to say that it will not" (1983-84: 121).
22
party. Everyone is entitled to his day in court, even if this entails according Canadian
courts the right to impose fines or similar sanctions on parties who take abusive
proceedings, as has been done in France. ^^ Unfortunately however, overly delayed
verdicts or decisions to quash are often useless, especially where the issue in dispute
has become moot. As Braibant correctly points out, [Translation] "the danger of
non-execution increases with time" (1961: 59). After several years have passed, the
final judgment is often too late for the plaintiff to obtain any real satisfaction. For
example, if a public servant has been wrongfully dismissed, how is it possible several
years later for him to be properly reinstated into an interrupted career? In other cases
delay may find the Administration in a position from which it cannot retreat, given the
existence of vested rights and the prohibition on giving retrospective effect to certain
acts. Public authorities inevitably have time on their side.
Even assuming that the courts decide a dispute within a reasonable time, the
Administration may be slow to respond to the judgment rendered (Garant, 1985a: 952).
For bona fide budgetary reasons, or even because of bad faith, it may procrastinate.^'^
Full execution of a judgment may, therefore, take considerable time, during which the
individual has no recourse. Because the Administration has great latitude in arranging
the practical details of execution, procrastination invites incomplete execution.
(b) Incomplete Execution
Incomplete execution often results from a rather legalistic approach to judgments
by public authorities. For example, in the case of a public servant who has been
wrongfully dismissed, the Administration may give the impression of complying with
the judgment by reinstating the person in the position or function previously held. But
if it fails to assign him any tasks or responsibilities, or reduces his salary, it has
complied with the judgment that quashed the wrongful dismissal only in a technical
sense. Where courts simply declare that an act is illegal without specifying a remedy,
often the Administration will interpret the judgment to suit its wishes. Unless the court
orders restitutio in integrum or some form of compensation, the form of administrative
execution may vary considerably. Indeed, public authorities may claim they
misinterpreted the true intent of a judgment when declining to draw the remedial
conclusions which it necessarily implies. In other words, respect for the letter of
judicial decisions is really only a preliminary step toward full execution.
The Administration may avoid full compliance with a court order in ways other
than declining to respect the spirit of the judgment. It may simply comply with only
part of a judgment. For example, it may grant monetary compensation to a plaintiff
while refusing to respect a mandatory or prohibitive injunction. On the pretext that it
remains the final arbiter of how to comply with judicial decisions, the Administration
may weigh the appropriateness of some measures ordered by the court against other
administrative requirements, and decline to execute a judgment fully.
26. See Richer, 1983. In Canadian criminal law, the judge may order a stay for abuse of process (R. v.
Jewitt). Such a power is only permissible in the context of accusatory proceedings (criminal matters)
and not contradictory proceedings (civil matters).
27. The Rosan-Girard case, CE. May 31, 1957, Rec. 355 (Concl. Gazier); G.A. 1978, 476; D. 1958.2.152
(Note by P.W.). See also Harlow, 1976: 118.
23
3. Administrative Alternatives to Non-Compliance
Thus far. Administration resistance has been presented as the principal impediment
to full execution of judgments. Yet other, more sophisticated means exist to neutralize
a judgment: the Administration may simply act to prevent a judgment from producing
any real effect, either by amending the law or by changing its own practice.
Specifically, it may do this by ratifying or re-enacting what has been impugned. Or it
may reach a similar result by unilaterally altering the situation of the parties.
(a) The Practice of Ratification
Ratification is a legislative response which allows the Administration to use
Parliament to regularize a challenged administrative act. It enables [Translation]
"the Administration to extricate itself legally from the consequences of the order to
quash or a declaration of illegality by the court" (Lefas, 1958: 86). In France, this
practice takes the form of a statute that retroactively validates various administrative
acts that have been quashed by administrative tribunals for want of jurisdiction (Perrot,
1983; Israël, 1981: 11). Commentators have severely criticized this practice. ^^ The use
of retrospective statutes can regularize acts whose legality is doubtful or contested
retroactively to the date when those acts were performed. ^^
Although the use of ratification is widespread in France, English-speaking
countries tend to resort to the technique of ex post facto annulation rather than to
"validatory practice" (Harlow, 1976: 122). In this sense, it takes the form of a reaction
or a response by the authorities to a judicial decision. The Burmah Oil case is a well-
known example. In 1942, during the Japanese advance into Burmah, the British
military authorities ordered the destruction of the Burmah Oil Company's installations,
fearing that they would fall into enemy hands. In 1961 the company sued for
compensation. Even though the destruction was ordered pursuant to an exercise of the
royal prerogative, the Privy Council found for the plaintiff on the basis that "there is
no general rule that the prerogative can be exercised, even in time of war or imminent
danger, by taking or destroying property without making payment for it" (p. 102).
Parliament reacted immediately by adopting An Act to abolish rights at common law to
compensation in respect of damage to, or destruction of, property effected by, or on
the authority of, the Crown during, or in contemplation of the outbreak of, war (1965,
c. 18). Thus, despite having its right to compensation recognized by the country's
highest court, the plaintiff received absolutely nothing.
English law provides other examples that are closer to the French practice of
ratification. Among various statutes enacted by the British Parliament to ratify illegal
acts committed by British troops stationed in Northern Ireland, the Northern Ireland
Act, 1972 (1972, c. 10) is particulariy striking. On February 23, 1972, a Northern Irish
28. Braibant, 1961: 64; Lesage, 1960: 318; Auby, 1977. For recent examples of validation, see Pacteau,
1983. Also by Pacteau (1985: 343), see his comments on "La remise en cause législative de la chose
jugée: les validations législatives."
29. On î vo occasions, the Conseil Constitutionnel has recognized the constitutionality of such proceedings
(Decision No. 80-119 DC of July 22, 1980; A.J.D.A. 1980, 480 and Decision No. 85-192 DC of July
24, 1985; A.J.D.A. 1985, 485 (note by J.J. Bienvenu)). In the second case, the proceedings were
audacious, to say the least, because the individual decisions at the basis of the dispute were validated
even before they had been taken!
24
court declared the regulations conferring special powers on British troops to be illegal
(O'Higgins, 1972). Reacting with remarkable speed, during the night of February 23/
24 the British Parliament enacted a statute making retroactively legal the powers therein
conferred on its soldiers, thus removing any likelihood of a claim for damages. Nearly
a century earlier. Dicey attacked similar practices (1911: 84). Today one may continue
to ask whether this potential escape-hatch serves the proper operation of the rules of
administrative law.
Legislative ratification is also practised in Canada (Lemieux, 1983: 7-22). In 1973,
the Supreme Court faced such a problem in the Woodward case. The British Columbia
Department of Finance had established the amount of succession duties to be paid by
the Woodward estate according to the Succession Duty Act of British Columbia. As this
amount was based on an assessment which interpreted the nature of the relationship
between the testator and a charitable organization, the executors challenged the
Department's decision before the courts. However, the dispute quickly became mootwhen the legislature enacted a statute which vested an unfettered right of interpretation
in the Minister. ^^ The Supreme Court upheld the statute, but noted (p. 127) that "the
latter part of this provision is unlike any other which has previously been considered
by the Courts. "^^ But unfortunately the Supreme Court stated that "it is not the
function of this Court to consider the policy of legislation validly enacted" (p. 130),
something that amounts to a rather narrow conception of the principle of Parliamentary
sovereignty.
However, this phenomenon of a posteriori ratification is not limited to
administrative law. It has become a general legislative practice that is not confined
solely to administrative operations. A statute may suppress or reduce the effects of a
judgment without any administrative act necessarily being questioned. This is shown by
a 1953 case dealing with the interpretation of an Alberta statute {Western Minerals Ltd.
V. Gaumont)?^ Once again, the Supreme Court accepted a fait accompli without
protest, noting (p. 367) that "[t]he Sand and Gravel Act is intra vires of the Provincial
Legislature and is declaratory of what is and has always been the law of Alberta, and
so applied to the present litigation and is fatal to the appellants' claim."" Yet the
30. In 1970, section 5 oï An Act to Amend the Succession Duty Act stated that:
For the purpose of subsection (1) the Minister, in his absolute discretion, may determine whether
any purpose or organization is a religious, charitable, or educational purpose or organization and the
determination of the Minister is final, conclusive, and binding on all persons and, notwithstanding
section 43 or 44 or any other provision of this Act to the contrary, is not open to appeal, question,
or review in any Court, and any determination of the Minister made under this subsection is hereby
ratified and confirmed and is binding on all persons. [Emphasis added]
31. Specifically, it concluded that "those words gave statutory ratification to all determinations of the
Minister made under s. 5(2), as amended, even though such determination would, in the absence of the
provision, have been valid" (p. 129).
32. Pursuant to an Alberta statute dating from 1942, the Land Titles Act, the appellant company held a
claim reserving ownership "of all mines, minerals, petroleum, gas, coal and valuable stone in or under
two certain quarter sections of land of which the respondents Gaumont and Brown were the respective
owners under the Act of the surface rights." The parties disputed the ownership of the sand and gravel,
even if the statute probably allowed it to be included in minerals covered by the claim. The trial judge
ruled in favour of the mining company on this point. However, the effects of this judgment wereliterally wiped out by the enactment of the Sand and Gravel Act of 1951, which reserved exclusive
ownership of the sand and gravel to the owner of the land surface.
33. Some judges have even adopted a firmly conciliatory attitude, by giving this statute a declaratory scope.
According to Mr. Justice Cartwright, "its provisions indicate an intention not to alter the law but to
declare what, in the view of the legislature, it is and always has been" (p. 367).
25
Ontario Court of Appeal objected to an Ontario statute in 1935, stating that certain
contracts "[are hereby] declared to be and always to have been illegal, void and
unenforceable as against the Hydro-Electric Power Commission of Ontario" (p. 798);
the enactment also had a privative provision in order to block any challenge
{Beauharnois Light, Heat and Power Co. v. The Hydro-Electric Power Commission ofOntario). Their Lordships refused to allow this interference with the judicial system,
declaring such provisions to be null and void and invoking the fact that "the Legislature
could not, by enactment of adjectival law, preclude the Courts of Ontario from so
declaring [it uhra vires]'' (p. 821). When important rights are at stake, the courts maytherefore be quite strict in construing the formal will of the legislator. As the courts
enjoy considerable independence, it is a pity that they have not been more critical of
legislative ratification.
This brief review has focussed on a real problem. The individual is in a precarious
situation if legislative or administrative intervention, before or after a judgment, maydeprive him of the benefit of a favourable or potentially favourable decision. Even if in
some circumstances ratification may be indispensable to avoid a stream of orders to
quash, ^"^it should not be allowed to impeach rights that have already been judicially
recognized. That is, ratification should not be deployed as a recourse against a judgment
already rendered. Here it is a case of reversing the old saw by ^hioh justice should not
only be done, but seem to be done. The judicial process should be more than simply
an appearance, a formal artifice without real significance, offering the individual no
more than a moral victory. This danger is more than a mere research hypothesis,
because by re-enacting what has been impugned, the Administration can, in fact,
eliminate the effects of a judgment.
(b) Reconfirmation of a Vacated Decision
In the area of individual administrative acts, for example licences, permits and
authorizations, the individual may easily lose the benefit of a judgment which has just
corrected an illegality in the decision-making process. If the Administration can render
the same decision against the plaintiff^ following an order to quash, in the end, he
obtains nothing more than provisional success, with the final outcome — an
unfavourable one — never really in doubt. Reconfirmation thus becomes an effective
way for public authorities to side-step a judgment, a genuine subterfuge described by
Harlow as "the cynical flouting of the judgment of a superior court by the
administration" (1976: 121). On the other hand, it can be argued that there is nothing
34. [Translation] "The repercussions of a decision to quash upon decisions that are themselves regular,
occurring after the fact but affected by the illegality of the act that has been quashed, may lead to such
complicated consequences that there is no other way than to proceed by legislative ratification, in order
to avoid problems that are even more serious than the non-respect of res judicata ' (de Baecque, 1982-
83: 184).
35. This is not the only possible aftermath of the quashing by the courts of an administrative act. Based on
the nature of the act that is quashed, and also on the grounds for it being quashed, the Administration
may have nothing to do, or on the contrary, may be required to act by various material and legal
measures, or may be required to take the same decision in accordance with various conditions. Without
wishing to deny the complex and unpredictable nature of the consequences inherent in any decision to
quash, here we are principally concerned with the final possibility. On the issue as a whole, see
particularly Massot, 1979-80.
26
reprehensible about public authorities correcting simple errors of form by again taking
the decision which the merits of the case require.
Whether occasional or widespread, this practice has managed to weaken the scope
of two classic precedents of administrative law. In Roncarelli v. Duplessis, the
petitioner was owner of a Montréal restaurant. He was denied his liquor licence in
1946 solely because of his membership in a religious group. He sued for damages,
citing the illegality of the revocation of his licence. In 1959, thirteen years after the
events took place, the Supreme Court ruled in his favour, declaring that discretionary
powers had been exercised in bad faith. Roncarelli never got his licence back. All the
Québec Liquor Board had to do was not refer to his religious beliefs in subsequent
refusals. It was enough, then, to re-enact the impugned decision while at the same time
correcting the cause of illegality. The Supreme Court was not empowered to declare
Roncarelli to be entitled to a permit, for in the context of a claim in damages this
would be to rule ultra petita (the action was against Duplessis). As exemplary as this
decision may be, it shows that the Administration often has the last word!
The Padfield case is even more troubling. The Agricultural Marketing Act, 1958
(c. 47) required the British Minister of Agriculture to set up a committee of inquiry to
examine complaints from groups of producers. Despite protests from milk producers in
southeast England about the effects of "milk marketing schemes" on their financial
interests, the Minister peremptorily refused to form a committee to study the merits of
the complaint. Although the Minister had discretion in pursuing the purposes of the
Act, the court nevertheless considered that he could not ignore formal requirements of
the Act. Following this decision, the Minister formed a committee to hear the
petitioners but it dismissed their application immediately. Commentators concluded:
"The remedy had proved illusory; the same decision could be reached with only
nominal deference to the court, and the waste of time and money entailed is a deterrent
to future complainants" (Harlow, 1976: 120).
The respect of formalities should not therefore create false hopes. Although the
Administration may change its mind, there is a considerable likelihood that it will reach
substantially the same decision upon a reconsideration. If its power is discretionary, it
is unlikely to reverse an initial decision which is consistent with its overall policy
approach. The individual only obtains a Pyrrhic victory. ^^
The Nicholson case is an excellent illustration of this type of problem. This
lengthy legal saga ended without the appellant being reinstated as a police officer. Hehad been dismissed by an administrative committee (the Haldimand-Norfolk Regional
Board of Commissioners of Police) following an urban reorganization whoseconsequence was a reduction in police personnel. He had been given no hearing prior
to his dismissal. In a majority decision, the Supreme Court considered that Nicholson
had been dismissed illegally because he "should have been treated 'fairly' not
arbitrarily" (p. 324). Anxious to respect the court's verdict, the committee then notified
Nicholson that a full hearing would be held in order to rule on his case. The samecommittee also sent him a supplementary letter with eleven reasons for dismissal.
Nicholson was obviously headed for a new dismissal, but this time the formalities were
36. The victory is all the more relative, because the administrative act whose quashing he has obtained will
nonetheless have produced material and legal effects since its issuance. As Massot has pointed out,
[Translation] "even though the act that has been quashed is entirely 'erased,' the judge cannot prevent
it from producing some effects, sometimes even all of its effects, and only in science fiction can we go
back in time" (1979-80: 116).
27
to be respected!^'' Even if it may suffer some reversals because of formal or other
procedural errors, the Administration is almost sure to win on the merits, above all
where its evaluation is discretionary.
In principle, ^^ public authorities are required to reinstitute proceedings that the
courts declare to be merely defective as to form. In this light, the phenomenon of
reconfirmation seems more benign: [Translation] "This attitude cannot be criticized,
to the extent that the author of the decision fully respects the rule of law" (Lemieux,
1983: 7-25). Nevertheless, even if required by the Rule of Law re-enactment mayeventually lead to abuse. In Padfield, the Minister substantially ignored the judicial
decision by refusing to proceed with a serious study of the grievances presented by the
milk producers. Repeating the same act was not enough, as he was also required to
respect substantive guarantees in connection with his decision. In other words, what is
important is the reasons for quashing and the nature of the Administration's power. If
the error is purely one of form, public authorities may easily reach the same result after
holding a new hearing that respects all procedural and substantive requirements. Simple
reconfirmation of an impugned decision is only questionable if substantive requirements
have been ignored.
But reconfirmation is still troubling. It is eloquent proof of the serious limitations
on judicial review. If judicial review only addresses errors of form, the petitioner can
hardly expect a meaningful result on the merits of his application. The administrative
act that has been vacated by the judge is merely replaced by one that respects the
requirements of formal legality!
Consideration might be given to a new principle of review by which public
authorities cannot encroach upon rights already recognized by the courts (more
specifically, the right to an honest and fair reconsideration of all elements involved in
taking the decision). This would link the formal and substantive factors which are the
basis of any decision-making process. Of course such a safeguard only contemplates
matters of law, and not the factual issues which may be at the root of a dispute. In the
meantime, the facts at issue may evolve in such a way as to compromise re-
establishment of legality.
(c) Unilateral Changes to the Circumstances in Dispute
In much litigation, the mere passage of time may totally jeopardize the plaintiff's
position. This problem may well be aggravated by the other party who multiplies
37. See Re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police.
38. Other problems may also arise. The individual may eventually face a new refusal following a change in
the provisions applicable to his case. Between the initial decision, which is quashed, and the second,
the time-lapse can be considerable. In fast-moving fields such as urban planning and social affairs, the
law changes quickly and the individual may no longer provide what was initially expected. Is the
Administration then required to apply the law in force at the time of the initial decision or instead to
apply the new provisions? Under such circumstances, may a judgment's scope be retrospective? Should
the judge apply the law in force at the time of the initial application, of the introduction of the lawsuit
or of the day the judgment is rendered? Without attempting to answer these complicated questions, wefind it worth noting that normally the Administration is bound to apply existing law to any newapplication, unless the contrary is provided for by law. Here is the problem: When an act that has been
quashed is taken again, is the individual considered to have made a new application? In Nicholson,
Mr. Justice Linden replied in the negative.
28
dilatory measures, or even worse, acts in such a way as to deprive the final judgment
of any effect.
The Administration may irremediably compromise the replacement of the other
party in its original position. This is all the easier where it is identified or associated
with the Crown, because it enjoys immunity from provisional execution. The most
striking example of this is the James Bay case, where ongoing construction work pre-
empted any potential effect of a final judgment favourable to the Amerindians.
The seriousness of this problem can be seen in at least one recent event: the last
judicial echoes of the Mirabel expropriations, which may eventually lead to a political
settlement. Three expropriation victims challenged unnecessary expropriations by
federal authorities. Despite this judicial challenge, the Canada Land Corporation
(C.L.C. — Mirabel) continued to reconvey, by sale or lease, excess land that had been
expropriated. In December 1983 it even undertook an advertising campaign, clearly
jeopardizing the efforts of the plaintiffs to have their land returned to them. They
alleged that such reconveyances would make the issue in dispute moot.
An interlocutory motion enjoining the sale was filed in the Federal Court. At trial,
the judge admitted that were he to deny the injunction, the lands could be resold. ^^ Yet,
the motion was dismissed. On appeal the issue was framed in analogous terms: "[T]he
appellants' remedy would be illusory if, following the sale of the lands, it becomes
impossible for them ever to recover their property" (p. 870).
A majority of the Court of Appeal nevertheless upheld the ruling of the Trial
Division. Although Mr. Justice Pratte noted that "this appears to be a case in which
the status quo should be maintained while the action is pending" (ibid.), the Crown's
immunity to injunction still prevailed. For Mr. Justice Hugessen, who dissented, "the
unequal strength of the two parties involved is such" that he would make an "order
directing the respondents not to sell the land ... until the final judgment" (p. 872).
Thus, there is no effective recourse against the State when it changes a situation
in dispute, as almost no exceptions to the rule of absolute immunity exist. There is
very real risk that changes to the factual undertones of a dispute will induce plaintiffs
to seek an out-of-court settlement rather than judicial recognition of existing rights. In
such negotiations, the initial object of the lawsuit becomes moot. And in the resulting
struggle the State is invariably the easy winner.
The problem addressed here is difficult to resolve because the Administration maylegitimately plead the imperatives of public interest and ongoing operation of public
services. The cruise missile case is only one of many where national security has been
invoked so as not to interrupt experiments with new technology (Operation Dismantle
V. The Queen). On the other hand, the individual may have a legitimate interest in
forestalling enforcement. Under present law the individual has no meaningful
safeguards, and this gives litigation a hollow ring. In the name of some abstract
administrative ethics, should the Administration be required to respect the rights of
third parties? This amounts to submitting the Administration to a higher morality on
the pretext that it is not merely acting according to purely private interests. If the State
39. "What would happen to this action if I did not grant the interlocutory injunction? That would definitely
put an end to the matter, at least with respect to the remedy sought, in that the lands would be resold,
thereby making it impossible for the plaintiffs to be declared the owners of these lands and removing
the basis for the application for a permanent injunction" (C.I.A.C. v. The Queen 6-7).
29
is presumed to be a good debtor, should it also behave as a good pleader? In addition,
it is always possible to argue that the State, like any other private party, may use
extrajudicial pressure tactics. Is this not the ultimate consequence of equality before the
law — the right of everyone to hit below the belt?!
These conflicting arguments are hard to reconcile. Moreover, other factors
particular to the litigation, specifically the real purposes pursued by the Administration,
may be relevant. The interests of the Administration and of the State's various identities
lie camouflaged behind the concept of the Crown. An in-depth examination of the
nature of administrative action, therefore, must precede proposals for reform. This
examination will be undertaken in Chapter Two, Section II: The Reality of ModernAdministration.
II. The Ineffectiveness of Alternatives to Compulsory Execution
Non-compliance can be a problem for execution creditors in two ways. Besides
direct non-compliance supported by Crown immunity, there is a variety of administrative
practices which achieve the same result. The question here is whether execution
creditors have effective remedies against non-compliance with judicial decisions. A few
do in fact exist, suggesting that the individual has effective means to achieve an
acceptable degree of execution. Some of these are essentially passive, such as pleading
res judicata or seeking declaratory judgment. Others imply a more active contestation,
as in the case of injunction and contempt of court. Despite the apparent potential of
these remedies, however, closer examination reveals their limits in securing compliance
with judicial decisions.
A. Passive or Non-Executory Remedies
The plea of res judicata and the declaratory judgment can be characterized as
passive in nature even though the creditor who wishes to invoke them cannot remain
inactive, particularly in the case of the declaratory judgment. While the declaration
requires the plaintiff to bring a new action, it remains fundamentally passive, because
it does not generate executory sanctions or give rise to debtor coercion. In principle,
public authorities must comply with declaratory judgments, just as they are morally
bound to respect any judicial decision. But since immunity from execution process is
the problem to be overcome, the declaration is seriously compromised.
1 . Res Judicata
Res judicata describes the principle by which, once a judgment is rendered, the
legal relationship of the parties described by that judgment is not open to challenge.
The stability of legal relations demands that once judgments have become definitive
30
they cannot be challenged in collateral proceedings. "^ Res judicata seems to be usually
invoked as a defence at the beginning of a new lawsuit where the cause of action is
based on questions of fact and law previously settled by the courts. In Québec law, this
defence takes the form of a bar to action, which must be raised as a preliminary
objection before pleading on the merits (Code of Civil Procedure, s. 165.1). Tosucceed, it must meet the requirements of the rule of the three identities: subject-
matter, cause and parties (Nadeau and Ducharme, 1965: 469; Nadeau, 1963). In
common law, the doctrine of res judicata is usually considered as a type of
"estoppel."'^' To apply, the defendant must not only show that "the subject-matter in
dispute was the same in the second suit" and that the judgment invoked "wasconclusive to bind every other court," but also that the plaintiff launching the newattack has omitted by his own negligence to raise the elements of fact or law in the
first lawsuit that he invokes in the second {Halsbury, 1983, Vol. 16: 1028). Res
judicata is a presumption juris et de jure, the judgment in question being deemed[Translation] "the full and entire truth" between the parties (Nadeau and Ducharme,
1965: 447).
The principle of res judicata has two defects as a means of ensuring compliance
with judgments. First, it is raised as a defence and not as part of an active contestation.
Unless the Administration attempts to relitigate an unfavourable judgment, the execution
creditor who hopes to use this principle to force a recalcitrant Administration to respect
a judgment in his favour has only extrajudicial resources at his disposal. For example,
he may attempt to pressure the Administration, perhaps even threatening new lawsuits.
In such a context res judicata does not really function as a legal remedy.
Secondly, the effect of a plea of res judicata upon the Crown is not clear. In
theory, "the King is not bound by fictions or relations of law, or by estoppels"
(Lyman, 1978; Chitty, 1820: 381). This is true for both classes of estoppel, "estoppel
by record" (based on forms of evidence or claims within the other party's pleadings,
and thus internal to the trial) and "estoppel by deed or estoppel in pais" (based on the
other party's conduct prior to the proceedings). ''^ Since "the doctrine of res judicata is
a branch of the law of estoppel" {R. v. St-Louis), it may be that the Crown is not
bound by the principle.
Not all authors support this deduction: "although Her Majesty is not bound by
estoppel, she is bound by the principles of res judicata'' {Canadian Encyclopedic
Digest, 1985: 141; Mundell, 1953: 208). But the precedents cited for this proposition
40. Watrin, 1958: 29. From the standpoint of French administrative law, Pacteau makes subtle and
interesting distinctions between "rejected res judicata,'" "granted res judicata'' and "declared res
judicata" (1985: 269). See also Delvolve who analyses the literature on the subject by constantly
stressing the fundamental distinction between ''res judicata" and "binding force" (1983-84: 115). Thelatter is not inevitably linked to the former, specifically with respect to interlocutory judgments.
41. For a comparison of civil law and common law on this subject, see Wasserman, 1956; Nadeau, 1986.
42. However, it should be noted that in 1916 an English case allowed that the Crown could be bound by
"estoppel in pais" {Attorney-General to the Prince of Wales v. Collom), thereby initiating a minority
trend in the case-law in both Great Britain and Canada: R. v. Gooderham and Worts Ltd.; QueenVictoria Niagara Falls Park Commissioners v. International Railway Co.; R. v. C.P.R. These precedents
were not long-lived, because in 1931 Mr. Justice Angus of the Exchequer Court reaffirmed forcefully
that "the Crown is not estopped by any statement of facts or any opinions set out in any department
report or letter by any of its officers or servants" (/?. v. Capital Brewing Co. Ltd. 182).
31
are not unequivocal/^ For example, the case of R. v. Dominion Building Corp. Ltd. is
not explicit, although an Exchequer Court decision of 1897, R. v. St-Louis, states
clearly that "the doctrine of res judicata may be invoked against the Crown" (p. 330).
Moreover, since the beginning of this century, the Supreme Court has made no clear
ruling on this point, except in criminal law where res judicata, in the form of the
special pleas of autrefois acquit and autrefois convict, operates in favour of the accused
to prevent successive prosecutions (Kienapple v. The Queen; Del Buono, 1983: 301).
In civil proceedings, doubts linger.
Can res judicata effectively bind the Crown? Chitty implies that the Crownbenefits from immunity in this area, so that an express legislative provision to the
contrary must normally be invoked.'*^ Besides these traditional arguments, the most
serious obstacle remains the concept of res judicata itself. In civil law, for example,
res judicata classically consists of three elements: the legal force of truth {la force
légale de vérité), binding force (la force obligatoire) and executory force (force
exécutoire) (Watrin, 1958: 39). English law has a comparable concept, the
"conclusiveness of judgments" {Halsbury, 1983, Vol. 26: 273). The third of these
three civil law requirements, executory force, is absent in Crown proceedings because
of the latter' s immunity from compulsory execution. At common law the right to
execution is one of the normal attributes of res judicata, and where it is not present res
judicata cannot be invoked: "the majority of judgments and orders require one or more
parties to do or abstain from doing some act, and, if such a judgment is not obeyed,
some further legal process is required to ensure compliance, [specifically] ... various
modes of execution and analogous proceedings" {id.: 289). The constitutional status of
the courts, the legal basis of their powers, and concepts of judgment and res judicata
permit an appreciation of the scope of the Crown's special status. Because it is above
the law, the Crown is also above res judicata. This quite surprising observation is
consistent with the state of the law.
Given these requirements, res judicata only applies to judgments which do not
imply recourse to some form of execution, but rather to judgments that are self-
executing. This is particularly the case with the declaratory judgment, one of the few
areas where res judicata may apply to the Crown. But if the declaration is being used
to compel execution of a judgment, other difficulties arise.
2. Declaratory Judgment
Although Mullan considers that "[t]he Federal Court Act does not contain any
specific authorization for the issue of a declaration ... against the Crown" (1975-76:
116), other authors feel that this remedy may lie under section 17 (Lemieux, 1983: 6-
09) or even section 18 (Dussault, 1974: 1009). To date, the courts have not been
concerned to clarify the point, but have allowed a rather broad use of the declaratory
judgment against the Crown (see Emms v. The Queen; Smith v. The Queen; General
Bearing Service Ltd. v. The Queen). In so doing, they have given this remedy a
43. In the previous century, Mr. Justice Gwynne, without referring expHcitly to the Crown, effectively
ruled that federal authorities were bound by res judicata (Fonseca v. Attorney General of Canada 619).
44. In St-Louis, this was the reasoning of the attorney for one of the parties, who claimed that because of
article 6 of the Civil Code (Lower Canada) the Crown was bound by article 1241 of the same Code
with respect to the definition of res judicata (p. 341).
32
meaning and scope traditional to common law countries (Zamir, 1962: 11). In England,
the declaratory action has enjoyed a considerable extension in administrative law
(Wainwright, 1981-82: in fine). May it now be used to subject the Crown to execution
process?'^^ To the extent that constraint and compulsion are hardly compatible with such
a remedy, has its original purpose been debased?
Initially, the declaratory judgment was clearly preventative, and not curative, in
nature/^ In Québec, this distinction was emphasized by introduction of the declaratory
judgment by motion in the new 1966 Code of Civil Procedure (ss. 453-456; Perron,
1973; Sama, 1973). But the importance of the distinction today has been diminished
by the Supreme Court, which has allowed municipal by-laws to be annulled by
declaratory judgment {Duquet v. Town of Sainte-Agathe; Grey, 1978). Already accepted
in English administrative law (Wainwright, 1981-82: 26; Congreve v. Home Office),
this broadening has made the declaratory action a more meaningful remedy. Quashing
is a genuine sanction of administrative action, going well beyond the idea of a "latent
right" that the court is asked to unveil. ^^ Originally understood as a non-executory
remedy that would clarify the plaintiff's rights and obligations, "^^ the declaratory action
has acquired a much more active role. To this effect, Lemieux (1983: 6-09) has
recently affirmed that it may even [Translation] "be used to prevent an illegal act"
and also to [Translation] ''require respect of a duty." [Emphasis added]
As significant as its evolution may seem, strict limits still prevent the declaration
from taking on the features of a direct action or a pre-emptive remedy such as
mandamus. A provision such as section 456 of the Code of Civil Procedure may imply
coercive purposes, by stating that "a declaratory judgment ... has the same effect and
is subject to the same recourses as any other final judgment." But to be genuinely
executory the declaration must also lead to effective compulsion. This raises the issue
of the remedy's purpose.
Many authors deny that the declaratory judgment may have a coercive purpose. In
examining its scope in administrative law, Warren concludes that its principal advantage
is precisely "the absence of coercive force behind the judgment .... The absence of
sanctions against public authorities decreases the chance of hostility in the proceedings,
and recognizes that public officials in a democratic society act more often as a result of
a perceived public duty than private gain" (1966: 642). This view of the declaration
puts it in a different category of remedies from coercive measures such as compulsory
execution. But because the declaratory judgment may result in the vacating of an
administrative act, it is less benign than usually thought, and may even leave open the
possibility of genuine sanctions. No doubt the Administration considers the quashing of
its acts as a sanction, but here sanction no longer means only an executory measure.
For example, the Federal Court has already declared that taxes "improperly exacted"
were to be reimbursed {General Bearing Service Ltd. v. The Queen).
45. Specifically, this is the position of Garant, 1985: 387.
46. "It will be seen that the essence of the declaratory judgment is the determination of rights. It is an
adjudication, in the full sense of the word, which does not create new rights or duties, but confirms the
existence of a jural relation. The effect of a declaratory judgment is then only 'to declare what was the
pursuer's rights before'" (Martin, 193 1: 547).
47. On this idea of latent rights, see Ferron, 1973: 382.
48. To learn more about the English approach in the nineteenth century, see Sama, 1978: 4.
33
But even if it has a broader scope, the declaratory judgment remains a remedy that
cannot result in sanctions. It does not give rise to execution process to compel
compliance. Wainwright considers that the declaratory judgment [Translation]
"declares the state of the law that is applicable at a given time without stating any
sanction for the defendant" (1981-82: 23). Rejection of the possibility of sanctions
amounts to excluding measures of compulsory execution. However, there is nothing to
prevent the emergence of other sanctions. Indeed, [Translation] "even though failure
to conform with a declaratory decision does not result in direct legal sanctions, acts
that are not consistent with the provisions of declaratory judgments may be considered
to be without legal effect in a situation where their validity is tested in a subsequent
proceeding" (ibid.). But this is of little interest if the declaration is sought to obtain
compulsory execution of a judgment. The problem is really administrative inertia, as
no positive measure has been taken to ensure that the judgment is respected. Measures
may only be quashed for illegality where there is active and direct violation of a
judicial decision, although such a remedy seems hardly appropriate to sanction normal
public administration. Basically, compulsory execution is not compatible with the
declaratory judgment. Pépin and Ouellette summarize the situation as follows: a
declaratory judgment [Translation] "is without executory or coercive force" (1982:
364).
Even if it were ultimately possible to obtain a declaration of the right to execution
in the case of violation of a previous judicial decision, such a judgment would get the
creditor no further ahead precisely because public authorities are still immune from
execution. The absurdity of this possibility is patent: How could a judicial remedy not
liable to compulsory execution serve as a palliative for a refusal to execute? To counter
the bad will of public authorities, the individual must be able to get a real result, and
the declaratory judgment cannot provide this. Taken alone, the declaratory judgment is
an illusory remedy; ideally it should be supplemented with a mandatory procedure such
as injunction {Pyx Granite v. Minister of Housing; Minister of Finance of Canada v.
Finlay; Pépin and Ouellette, 1982: 377). But once again, the injunction against the
Crown is not without its own problems, as will be seen in the next section.
B . Active or Executory Remedies
Even if the cases give some direct effects to the declaratory judgment, the remedy
still cannot be deployed to force recalcitrant authorities to act in a specific way. Such a
result normally can be obtained only through mandatory remedies, such as the
injunction and mandamus. These involve direct coercion aimed at the performance or
non-performance of a specific act. Depending on the plaintiff's objectives, a punitive
remedy, where an element of moral or material compensation prevails, may also be of
use. These consist of contempt proceedings and the traditional action in damages.
1. Mandatory Remedies
Even if the injunction and mandamus have the same general purpose, they are not
available under identical conditions. Their different origins explain this result. The
injunction is a private law remedy whose extension into public law is a relatively recent
34
phenomenon. In Crown proceedings, however, distinctions between the two lose much
of their significance. In 1976, the Federal Court considered it to be "obvious" that
"no court may grant a mandamus or an injunction against the Crown" (Laurent v. The
Queen 49). Immunity from prerogative writs and injunction is also clearly spelled out
in all provincial statutes. "^^ Despite these obstacles, given their recent evolution, it is
worth considering whether they can be used to coerce public authorities. Because these
developments have differed for each of the two remedies, they will be discussed
separately.
(a) Problems with the Injunction
Despite hopes generated by the availability of injunction against some public
authorities, major obstacles still restrict its scope and effectiveness. Injunction may be
sought only in a small number of situations; in addition, there are strict conditions
limiting its availability. These limits take on a special importance if the injunction is to
be used to compel public authorities to execute a judgment.
(i) Parties Defendant
The main factors conditioning the issuance of an injunction against a public
authority are the status of the authority and the legality of its action. Although there is
little doubt that injunction may be granted against "the Administration which is not the
Crown," it is not available against those who are associated with the Crown (Strayer,
1964: 2; Lemieux, 1983: 7-14). This immunity is based on the fact [Translation]
"that judges do not issue orders that they cannot have executed" (Pépin and Ouellette,
1979: 275), sending us back to the overall problem of the relationship between Crownand courts (see supra, p. 10). Indeed, "the injunction is a specific order from the court
to a member of the executive branch demanding specific compliance" (Strayer, 1964:
1). Pursuant to general principles of public law and common law, direct constraint of
the Crown is not allowed. Despite the suggestions of some authors^^ as well as a formal
recommendation of the Commission (Canada, LRCC, 1977: 47), the general principle
governing the availability of injunctive relief against the Crown remains immunity.
Analysis of the cases only confirms the continued applicability of this general
principle. The Federal Court has been the most unequivocal. On several occasions it
has reaffirmed the immunity rule. In 1982 in Grand Council of the Crées (Quebec) v.
The Queen , Mr. Justice Pratte of the Appeal Division noted that
... various provisions of the Federal Court Act ... do not, in my view, have the effect of
abridging the traditional immunity of the Crown from injunctive relief. If Parliament had
wanted to modify or repeal such a well-established principle, much clearer language would
have been used. (p. 600)
49. For Québec, Code of Civil Procedure, s. 94.2; for Ontario, Proceedings Against the Crown Act,
s. 18(1).
50. [Translation] "It becomes a question of protocol to deny an injunction only because it is directed
against the Government or the Crown" (Pépin and Ouellette, 1982: 362).
35
In a recent case, the same judge adopted an identical position.^'
Despite this line of authority, which is hardly favourable to claims by individuals,
other judges have allowed injunctive relief when public authorities commit an illegal
act or exceed their jurisdiction. The immunity they enjoy has therefore become relative,
if they exceed the limits of their jurisdiction. ^^ In the Société Asbestos Ltée case, the
court went even further in granting an injunction against the Crown on the simple
threat of illegality, more specifically the unconstitutionality of a statute.
This latter approach may be reconciled with the views expressed by the Federal
Court, if the nature of administrative action in question is distinguished. Where this is
truly administrative and does not result from a legislative mandate, immunity remains
the rule. In Grand Council of the Crées (Quebec), Mr Justice Marceau referred to
"duties of a general administrative nature" for which the Minister was only responsible
to the Crown (p. 600). On the other hand, if administrative action flows from objectives
set out expressly by statute, it is sufficient to allege any ground of illegality to
overcome the immunity. While the distinction is clear, one might still question its
relevance, since all administrative action at some point is directed to the pursuit of
legislative objectives. Administration is not an end in itself.
This breach in the scheme of Crown immunity opens up an interesting alternative
if it is possible to characterize the failure to respect a judgment as an illegal act. The
argument would be that a judicial decision, viewed as a precedent, is law, so that its
violation amounts to an abuse of authority amenable to injunctive relief. But the
hypothesis is still highly speculative, since heretofore injunctions have only been
granted to restrain legislative and constitutional illegality. Moreover, Crown immunity
from execution has a legislative foundation, and statutes are hierarchically superior to
judicial decisions. Finally, it might even be that the Crown's failure to comply with a
judgment does not amount to an illegal act. Not only is the Crown immune to any
form of judicial constraint, but it may also consider that it is not really subject to the
principle of res judicata for the reasons mentioned above (see supra, p. 30). Given
these doubts about the very concept of an illegal act,^^ injunctive relief in this area
remains extremely uncertain.
In order to circumvent this problem, it is always possible to attack directly an
individual public servant or agency head. Injunctive proceedings are then directed
against the individual and not against the Crown. Such a distinction has been favourably
received in Québec, where courts have rejected a Crown agent defence raised by
51. "There is a rule of long standing that the courts cannot issue an injunction against the Crown. This
rule may seem archaic, but this Court has recently held that it still applies and that it was not abolished
by the Federal Court Act. In these circumstances, I consider that this recent decision must be followed
until the legislator or the Supreme Court of Canada decides otherwise" {C.I.A.C. v. The Queen 869-
70).
52. "[A] person threatened with the commission of an unlawful act by a corporate Crown agent can seek
the assistance of the Court to prevent the corporation from doing that which it is not authorized to do
as a Crown agent" (Mr. Justice Martland in Conseil des Ports Nationaux v. Langelier 74). See also:
Amax Potash Ltd. v. Government of Saskatchewan; Procureur général du Québec c. Société du parc
industriel du centre du Québec; Lepage v. Association québécoise des pharmaciens propriétaires.
53. For example. Garant questions whether violation of a contract by the Administration amounts to
illegality: [Translation] "Cannot breaking a contract be considered as an act that is ultra viresT'
(1985: 387).
36
Ministers against whom an injunction was brought on their personal capacity. ^'^ In
federal law, this manœuvre has only had limited success. Citing an earlier Supreme
Court decision (The Minister of Finance of British Columbia v. The King), the Federal
Court refused to issue an interlocutory injunction against two federal ministers on the
grounds
... that a mandatory order cannot be issued against a Minister of the Crown when he is
simply acting as a servant of the Crown rather than as an agent of the legislature for the
performance of a specific duty imposed on him by a statute for the benefit of some
designated third person. {Grand Council of the Crées (Quebec) v. The Queen 601)
From this angle, injunction probably only exists for a limited range of situations.
The Minister must refuse to accomplish an express statutory obligation that benefits the
interests of some designated third person. Therefore, the concept of an illegal act has a
very specific meaning, which Québec courts have done little to articulate, being either
too general — allusion to "want of jurisdiction" {Ascenseurs Alpin-Otis Cie Ltée;
Association espaces verts du Mont-Rigaud) — or too confused {M.D.J. Ltée).
Whether it receives a large or narrow construction, the notion of an illegal act
being considered here must result from legislation rather than precedent, and
consequently we are thrown back to the general obstacles mentioned earlier in
connection with the specific case of execution of judgments.
(ii) Criteria of Availability
From a review of the criteria governing the availability of injunctions (colour of
right, gravity of harm, balance of inconvenience), it is apparent that the remedy is
completely discretionary. As commentators note, issue of this remedy [Translation]
"is largely discretionary" (Pépin and Ouellette, 1982: 359) because it implies a
subjective evaluation of the position of each of the parties with respect to the other and
of their respective interests. Here it seems reasonable that a comparison between the
public interest and a purely private interest will hardly favour the latter. The famous
case of Société de développement de la Baie James is an excellent illustration. Although
the trial judge admitted that the balance of convenience favoured the aboriginal peoples,
the five Québec Court of Appeal judges ruled firmly in favour of the Government. In
their analysis of the balance of convenience, it is striking to see how easily the judges
associated the general interest with the ends pursued by the Government, the two
appearing to coincide. As Mr. Justice Turgeon noted, [Translation] "the interests of
the Québec public are represented in this case by the principal appellant companies"
and "the evidence shows that it is imperative for Hydro-Québec to carry out its
project ..." (p. 177). Thus courts may well show great sensitivity to this mystical
general interest so as not to disrupt the smooth operation of public services. Of course,
as the Société Asbestos Ltée case seems to suggest, in order to prevail the
Administration must actually prove that there is a conflict between public and private
interests. But since the public is often dependent on the undisrupted operation of
54. See Ascenseurs Alpin-Otis Cie Ltée c. Le procureur général du Québec; Lepage v. Association
québécoise des pharmaciens propriétaires; Peetroons c. Ministre de VAgriculture du Québec; Morin v.
Driscoll College Inc.
37
administrative services, courts are understandably hesitant to issue orders enjoining the
Administration. Vis-à-vis the State, private interests can easily be seen as subordinate
and contingent. For all these reasons, the use of injunctive relief to compel public
authorities to execute a judgment remains doubtful.
(b) The Limits of Mandamus
Compared with injunctive relief, mandamus seems a more plausible recourse
because it was actually created to force a public authority to carry out a legal duty or
obligation. To counter non-compliance, Harlow proposes use of mandamus (1976:
123), since its very purpose is to respond to the Administration's inertia. As Dussault
points out, it contemplates [Translation] "ensuring the execution of a public duty"
(1974: 1044), something which seems to suggest that it may be used against an
authority which fails to comply with a judgment.
The use of mandamus is not, however, totally free of problems. In principle, the
Crown is still immune from this remedy. This rule was strongly affirmed by Mr. Justice
Walsh in Rossi, who concluded peremptorily that mandamus does not lie against the
Crown. Yet it may be, subject to what has already been said about the injunction, that
this problem may eventually be side-stepped by the direction of proceedings specifically
at the public servant or agent who has refused to respect a statutory obligation. As a
direct recourse against the Crown, mandamus is all the more uncertain because
compulsory execution of the order is not possible. Some commentators do suggest that
defiance of mandamus can give rise to contempt of court proceedings (Pépin and
Ouellette, 1982: 314; Reid and David, 1978: 417) — in Québec, this is provided for
by section 836 of the Code of Civil Procedure. But there is no little absurdity in a
situation where a private individual must resort to contempt proceedings upon a
mandamus to execute an earlier judgment and still not be certain that that initial
judgment will be complied with.
Another more serious problem flows from limits on duties which may be
compelled by mandamus. All commentators have noted that [Translation] "for the
writ to be admissible, the defendant must be forced according to the terms of the
enactment to act in a given way."^^ The obligation must be directly prescribed by
statute^^ or regulation, as was the case in Vic Restaurant Inc. v. City of Montreal.
Thus, mandamus would only be available if by ignoring a judgment, the Administration
violates a duty imposed by statute or regulation. Besides statutory duties of form and
procedure (inquiry, consultation, and so forth), such cases might include those where
the authority refuses to act in a manner logically implied from the quashing of a prior
act, or to perform a purely ministerial function. However, there are many examples of
enactments that impose no specific duties on the Administration. Mandamus would not
lie to compel compliance where the Administration enjoys a subjective discretion,
notably disputes relating to the exercise of discretionary power, cessation of a nuisance,
repair of harm, execution of a contract, exercise of police administrative powers, to
55. Lemieux, 1983: 5-02; de Smith, 1980: 54. This author is careful, however, to recognize a larger basis
for the admissibility of mandamus ("charter, common law, custom or even contract"), but without
being very convincing on this issue. To the same effect, see also Whitmore and Aronson, 1978: 376.
56. See in this sense: Weatherby v. Minister of Public Works; Harcourt v. Minister of Transport; Bay v.
The Queen.
38
name only a few. In National Indian Brotherhood v. Juneau, the Federal Court has
already refused to issue mandamus to compel the C.R.T.C. to hold a public hearing
since the decision whether or not to do so was purely discretionary (see also Moreau c.
Cité de Sherbrooke). But, while an administrative authority cannot be compelled to
exercise a discretionary power in a given way, it is still susceptible to mandamus if it
exercises those powers in a way which is arbitrary or contrary to statute {Padfield v.
Minister of Agriculture, Fisheries and Food', Air Canada v. Attorney General of British
Columbia).
It is possible, however, to construe the "legal duty" requirement broadly. Does
not a judgment in favour of a private individual also create a legal duty for the
Administration, a duty imposed by judicial decision? That is, in recognizing pre-
existing legal imperatives, the judgment confirms a vested right to which the
Administration is obliged to conform. ^^ The concept of vested rights nevertheless has
its limits, and the courts have always required that the rights in question be given
expressly by statute. ^^ They cannot arise from liberal judicial interpretations of statutory
language. Mandamus would appear, therefore, to be a remedy for compelling public
authorities to respect the legality of a statute, but not a judgment {Rossi v. The Queen).
Clearly then, mandamus is no panacea for non-compliance with a judgment.
Although it has greater possibilities than either the declaratory judgment or the
injunction, it is not without its own external and internal drawbacks.
2. Punitive Remedies
Besides direct coercive remedies, there are others which are punitive in nature.
The possibility of a contempt of court citation or of a damages award raises the spectre
of genuine punishment for whoever defies a judgment. A plaintiff who has little interest
in full compliance may instead resort to these forms of moral (contempt of court) and
monetary (damages) punishment.
(a) Contempt of Court
To sanction acts or omissions which impugn the authority of a court, the commonlaw allows the judge to cite for contempt of court. Such a sanction is deemed inherent
in the powers of the court (Jacob, 1970: 26), and has very different implications
depending on whether the contempt is civil or criminal. ^^ Non-compliance with a
judgment belongs to the first category, because the purpose of civil contempt is "the
enforcement of judgment or orders of the court" (Borrie and Lowe, 1973: 314). In
57. In Québec, some judges consider mandamus to be admissible to protect vested rights. This is especially
the case in municipal affairs, under the pretext of a "flagrant injustice" which would result from non-
respect of vested rights prior to enactment of a zoning by-law: Hanschild c. Corporation de la ville de
Delson.
58. See Biais c. L'Association des architectes de la province de Québec; Tsiafakis v. Minister of Manpowerand Immigration; Bouchard v. Les commissaires d'écoles pour la municipalité de Saint-Mathieu-de-
Dixville.
59. On this distinction, see: Hamon, 1962; Ziegel, 1959: 262; "Contempt of Court" in Halsbury, 1983,
Vol. 9.
39
principle, "it is a contempt to disobey a judgment or order either to do a specified act
within a specified time or to abstain from doing a specified act" (ibid.). In other
words, contempt may be deployed to repress certain types of disobedience committed
ex facie (outside the courtroom) (Canada, LRCC, 1977a). For all practical purposes,
civil contempt is only aimed at defiance of mandatory orders such as injunctions and a
mandamus, and its use where an ordinary judgment has not been complied with is
considered merely hypothetical. ^°
When a public authority ignores a judgment, is it possible to bring contempt of
court proceedings? This is a complicated question, and there is much to suggest that it
is utterly ludicrous for the Crown to be cited for contempt. For reasons related to the
scope of the powers of the courts, to the nature of the immunity enjoyed by the Crown,
and to the nature itself of the sanction for contempt of court, a conviction of the Crownfor contempt of court is unlikely under existing law.
In an historical context, it should be noted initially that the contempt power is
inseparable from the prerogatives of the Crown. As Watkins observes, "the courts, as
agents of the King, derived their use of the contempt power in such cases from the
presumed contempt of the King's authority" (1967: 126; Beale, 1908: 164). In other
words, disobeying the courts amounts to disobeying the Sovereign, and this means that
contempt is directed towards Her Majesty. By the mechanism of delegation of royal
justice, the courts have thus found themselves with the "right to punish disobedience,
obstruction or disrespect" (Watkins, 1967: 126). With the Acts of Settlement in the
eighteenth century, the role of contempt changed, and the courts henceforth used it to
protect their own authority. Yet the courts are still "the King's Courts" and Her
Majesty is still the fountain of justice. To find the Crown in contempt, therefore, would
seem to be at odds with the very spirit of English public law.
The second problem with contempt for disobedience to an injunction or mandamusflows from the nature of Crown immunity. Because the Crown is protected from these
mandatory recourses, it cannot be held in contempt as a sanction for disobeying them.^*
But to the extent that injunctive relief may now lie against the Crown under certain
conditions, it is not inconceivable that the Crown be held in contempt of court. Acharge of contempt against a Crown agent has already been brought before the Supreme
Court. ^2 But, in the Société Asbestos Ltée case, the Québec Court of Appeal implied
that a contempt citation would not lie. Mr. Justice Lajoie observed that [Translation]
"the impossibility of holding the Solicitor General in contempt of court for violation
of an injunction does not convince me that this injunction cannot be granted" (p. 350).
60. "In general, no one is liable to contempt proceedings and committal for the non-payment of a sum of
money" (Watkins, 1967: 136).
61. In Québec, for example, because of section 94.2 of the Code of Civil Procedure the Crown is exempt
from the application of section 836 of the same Code, which provides for contempt of court in the case
of violation of a judgment favourable to an extraordinary remedy. Similarly, it escapes section 761
making any person who violates an injunction guilty of contempt of court.
62. C.B.C. V. Quebec Police Commission. The dispute had left the impression that the Supreme Court
would pronounce itself on the powers of the Québec Police Commission to convict a Crown agent for
contempt of court, in this case the C.B.C. It was a classic case of contempt, the corporation having
published a photograph of a witness despite the Commission's formal prohibition. In its petition for
evocation, the C.B.C. invoked its immunity from charges of contempt of court. Relying on Conseil des
Ports Nationaux v. Langelier, the Québec Court of Appeal rejected this argument. The Supreme Court
did not rule on the question, reversing the Court of Appeal decision on the pretext that the Commission
was not invested with the power to convict for contempt of court.
40
To the extent that contempt of court is a means of pressure aimed at extracting the
recalcitrant party's compliance with a mandatory judgment, it is thus, if not a direct, at
least an indirect means of compulsory execution. Here there is no breach in Crownimmunity. It follows that the Crown is not only "immune from all ordinary modes of
enforcing a judgment" (Halsbury, 1983, Vol. 11: 765), it is also protected from any
proceedings serving to compel the exercise of its will in a particular way.
This last point suggests a third and decisive objection. Obviously the very nature
of the sanction for contempt of court cannot apply to the Crown. Crown property
cannot be sequestrated, nor may the Crown be imprisoned. ^^ As for imprisonment. Her
Majesty cannot be subjected to any form of criminal charge leading to arrest and
imprisonment. Arguably even charging the Crown with contempt should be ruled out.
The argument is as follows. The distinction between criminal and civil contempt is
artificial (Watkins, 1967: 138; Canada, LRCC, 1977a: 25; Barrie and Lowe, 1973:
370) because the nature of contempt proceedings rapidly transforms them from the civil
into the criminal (Berger and Brown, 1965-66). And in principle, the Crown cannot be
charged with any criminal offence.^
But the Crown's immunity from criminal proceedings is no longer absolute. TheSupreme Court recently dismissed the C.B.C.'s argument that as a Crown agent it
could not be charged under the Criminal Code {C.B.C. v. The Queen). Applying the
principles set out in Conseil des Ports Nationaux v. Langelier, the court ruled that to
benefit from its traditional immunity, the C.B.C. had to use its powers in a way that
was compatible with the purposes of its governing statute, something it did not do in
broadcasting a film contrary to the requirements of the Broadcasting Act and
regulations. On the other hand, as the case of /?. v. Eldorado Nuclear Ltd. andUranium Canada Ltd. demonstrates, observance of statutory purposes has enabled other
Crown agents to avoid criminal charges. If the purposes of the statute are drafted in
general terms, it becomes even more difficult to claim that these have not been
respected. The C.B.C. case shows that susceptibility to criminal proceedings exists
only in cases of obvious and gross violation.
Although it is now clear that the Crown and its agents may be liable to criminal
charges under certain limited conditions, this still does not mean it can be held in
contempt of court. Contempt proceedings are unique, in that they confer extraordinary
power upon a judge, a power derived from Her Majesty herself. With contempt of
court, we are directly confronted with the very basis of the courts' "jurisdiction."
Under existing law, it is highly improbable that contempt of court charges could
He against an administrative service or entity that accedes to the special status of the
Crown. While this rule could be changed by the introduction of some distinctions
within the concept of the Crown, to do so would raise new problems and curious
paradoxes, as the Eldorado case clearly shows. ^^
63. See particularly: (Québec) Code of Civil Procedure, s. 94.2; (Saskatchewan) The Proceedings Against
the Crown Act, s. 17(2); (Ontario) Proceedings Against the Crown Act, s. 18.
64. "The weight of authority suggests that the presumption that the Crown is not bound by legislation is
exceedingly difficult to dislodge in the case of a criminal statute" (Canada, LRCC, 1984: 15). See also
McNaim, 1977: 87.
65. On these problems, see Canada, LRCC, 1985: 14-5.
41
On the other hand, it would seem that "the Administration which is not the
Crown" could be charged with contempt of court. The conviction of agents and public
servants, when they are charged personally, may also be envisaged. However, when
these agents are acting in the exercise of their functions, they are often able to invoke
either Crown immunity or some special statutory immunity.
(b) Damages
Rather than bring contempt proceedings against the Administration, a judgment
creditor may opt for an action in damages, a more material form of revenge. Failure to
execute a judgment may cause harm. It is not inconceivable that the Administration's
bad will or negligence in failing to comply with a judgment constitutes a civil wrong
for which there should be compensation. An example might be proceeding with
construction work that has been declared illegal. On the other hand, where non-
compliance merely results from an omission — and this is more frequent — there is
more doubt about the Administration's liability. In the area of execution this
phenomenon of omission takes the form of lateness, incomplete performance or pure
and simple inertia.^ Administrative inaction is a complex phenomenon going far
beyond the area of execution of judgments. ^^ The important point is that there is no
clear recognition of the individual's right to force the authorities to act, as the case-law
on this subject is still in an embryonic stage (Brown and Lemieux, 1979). The problems
are most common with respect to claims for damages, both in conmion law and civil
law.
The common law of "torts" does not easily recognize non-feasance as a tort.
Street observes that "[the] English Law is reluctant to hold a person liable for
omissions" (1968: 108). Where there is no "duty to act," inaction does not constitute
liability in tort.^^ In administrative law, such a duty to act could only arise by statute
(Wade, 1982: 665; Hogg, 1971: 99). Absent a statutory duty, an administrative authority
remains free to act as it wishes. Here the authors distinguish between "duty" and
"power"; failure to exercise jurisdiction or power does not incur liability, at least in
principle (Wade, 1982: 662; contra, City of Kamloops v. Nielsen). The only way to
reverse this presumption against liability is to plead a negligent exercise of a power, for
example because of excessive delay. Nevertheless, it is hard to make out a case for
delay as negligence. In the East Suffolk Rivers Catchment Board case, the
Administration ("the Board") took 178 days to repair a sea-wall when fourteen would
have been reasonable; the effects of a flood which took place in the interim were
devastating, but the House of Lords did not consider this administrative slowness to be
actionable.
A new and broader theory of public authority negligence does, however, seem to
be emerging. In Dutton, Lord Denning challenged the traditional power or duty
dichotomy by suggesting that an intermediate term, control, could give rise to liability
66. On passive resistance, see supra, p. 22.
67. Suffice it to mention non-ratification of a contract, non-application of official regulations, non-operation
of a service, non-payment of a benefit, non-payment of a debt (Montane de la Roque, 1950).
68. "In the absence of some existing duty the general principle is that there is no liability for a mere
omission to act" (Salmond, 1965: 291).
42
where there was negligence (p. 391). This important decision was approved by the
House of Lords in a similar case (Anns v. Merton London Borough Council). The
negligence in these cases resulted from a positive act, namely an inspection, and not
from an omission. Inaction is more easily tied to negligence in the area of discretionary
power. For example, in the Dorset Yacht case, the Home Office (the Crown) was held
liable because it exercised insufficient care with respect to detention measures for
young offenders. ^^
Yet one ought not to lose sight of the limited scope of these developments whenassessing their relevance to problems of non-compliance. In trying to find remedies for
special situations, the courts have remained wedded to the concept of duty, whether
express or simply implicit in the statute. It is no help where mere shortcomings of the
administrative authority are alleged. Often, the Administration has no precise and
imperative duty to act, but merely the possibility of acting. A judgment may well
impose a moral obligation on the Administration; but its inaction cannot be likened to
the breach of legal duty such as that found in Dorset Yacht.
Inspired by common law, English administrative law considers liability resulting
from inaction very narrowly. Any change in this situation would require a redefinition
of the basis of liability in tort. In the civil law, however, fault may result from a simple
omission or from abstention (Baudouin, 1973: 49). While in the past, commentators
such as Mignault, who were probably influenced by the common law, argued that
omission is only a fault when there is a legal duty to act (1901: 333), contemporary
authors prefer to view everything as a question of the circumstances of the case
(Baudouin, 1973: 50; Mazeaud and Tunc, 1965: 633; Le Toumeau, 1982: 658). All
depends on the situation of the individual at the time of the alleged fault. His conduct
is assessed according to the traditional criterion of the careful and diligent person, the
prudent administrator, the "ordinary person" (Mazeaud and Tunc, 1965: 634). If harmresults because a judgment has not been executed, the courts are free to decide whether
the Administration has been diligent in adopting the measures that circumstances
dictate. The Administration's duty to act is therefore conditioned by objective elements
of fact and law, as well as by more subjective criteria related to its ability to anticipate,
its attentiveness, in other words, good administration. In civil law the bon père de
famille is replaced by the good public administrator, who prudently takes appropriate
measures so as to avoid unnecessary harm.
Theoretically, civil law allows financial compensation for all types of damage. Its
application to the Crown has certain advantages because, in Québec civil law, the
Crown enjoys in principle no special status in the field of liability (subject to special
statutory immunities and privileges). The Crown is subject to the Civil Code like any
individual (see Code of Civil Procedure, s. 94). Under English-Canadian law, the
individual can hardly hope for other forms of compensation than those provided by
69. While escaping, the convicts took over the plaintiff's boat and damaged it. Even if the organization of
prisons was subject to discretionary appreciation, the judges still considered that the latter had been
exercised "so carelessly or unreasonably" (p. 1031) that the clear result was an excess of power. Byunreasonable negligence in the exercise of their discretionary power, the authorities had done nothing
less than violate the intentions of the legislator, by creating a situation similar to the one which would
result from the total non-exercise of their discretion. Considering the potential dangers arising from
custody of these "dangerous boys," in reality there existed "a duty to take reasonable care that they
could not injure the public" (Wade, 1982: 657). The Dorset Yacht case remains true to this requirement
of a duty, the "duty to care" thus replacing the "statutory duty." This progression is nothing more
than the extension of "duty to care" to the public authorities.
43
common law or the Crown Liability Act (which is mainly based on the common law
system). It is difficult to invoke equity, because "equitable relief" always involves
specific performance where financial compensation is not deemed appropriate. ^° Evenif equity may be invoked in defence against the Crown J' it is unavailable to a plaintiff
in a damage suit and above all, in the case of the Crown, to obtain execution. It is
further limited because it does not exist as a parallel remedy where specific rules
already exist: "Equity follows the law."^^
Conclusion to Chapter One
This initial review of real or potential problems in the execution of judgments
against the State has focussed on a number of issues. A large part of the federal
Administration may claim a special status with respect to judicial control because it
accedes to the immunities of the Crown. Not only do these entitle it to special treatment
during litigation, but even after judgment it enjoys privileges which shield it from
compulsory execution. In a system where judicial review is being so readily lauded, it
is striking that administrative law leaves the execution of judgments to the discretion
and good will of the Administration. Although Government and administrative bodies
are showing more deference to the courts, existing law is nonetheless marked by the
absence of any real safeguards for the execution creditor. To summarize, he confronts
two major problems:
— There is no clear and specific obligation on the Crown to execute fully judicial
decisions.
— Where there is inertia or bad will on the part of public authorities, the execution
creditor has only feeble techniques to obtain execution of a judgment in his favour.
In practice these shortcomings draw the execution creditor into a second round of
legal proceedings — out-of-court negotiations following judgment. As he has no
concrete way of insisting on full execution of his judgment, the Administration maywell procrastinate to force him to come to terms. Indeed the greatest danger is
incomplete or insufficient execution, resulting from the concessions the execution
creditor must make to avoid additional litigation or further delays.
Relations between the State and the citizen should be subject to rules based on
law, and not good will and propriety. As part of the clarification and modernization of
the legal status of the federal Administration, immunity from execution must be
fundamentally reappraised. It must be eliminated where it is not relevant, and subjected
to safeguards in favour of the execution creditor in those cases where immunity
continues to be warranted.
70. "Equity" in Halsbury, Vol. 16: 869.
71. In contract law, see Attorney-General for Trinidad and Tobago v. Bourne. In real estate law, see
Attorney-General to the Prince of Wales v. Collom.
72. "It comes into operation only where the parties are involved in some relation which will give equitable
doctrines room and scope." See Maine and N.B. Elec. Power Co. v. Hart.
44
CHAPTER TWOReappraising Immunity from Execution
To recognize shortcomings in existing law is only a first step. The second is to
reappraise immunity from execution in light of other transformations in contemporary
law. Even if the need for change is evident, still there is nothing to suggest how this
should occur. The principal problems flow from the specific character of public law
and the unique nature of the State. Until now, these particularities have been implicitly
accepted by the vast majority of jurists, who, moreover, have been reluctant to accept
the principle of compulsory execution against the Crown and its agents. For them,
accepting compulsory execution amounts to ignoring the special nature of the State,
and resurrecting the same set of problems discussed in Working Paper 40 (Canada,
LRCC, 1985).
To bolster the case for reform, it is useful both to review proposals by academics,
and to examine the experience of other countries. Although somewhat diffuse, there is
a current of opinion in favour of modifying the privileged position of the Administration
in the area of execution (Section I: Existence of a Reform Movement). The existence of
this current suggests that theoretical and conceptual problems with compulsory
execution against public authorities are often the same in various Western countries.
This school of thought also favours a relativistic approach which respects the balance
between the execution creditor's legitimate rights and the imperatives of sound
administration (Section II: The Reality of Modern Administration).
Section I: Existence of a Reform Movement
In several Western countries, renewed interest in the rights and freedoms of the
individual has stimulated a far more critical approach to State privileges than in
Canada. This interest has generated broad reform movements which in many cases have
led to specific changes. Adherents to these movements have clearly gone beyond the
issue of relations between the State and the execution creditor, to a general concern for
the position of citizens before the courts (small claims, class action, legal aid). But in
Canada, as in other common law countries, this trend has not yet brought about a
change in Crown privileges and immunities. The experiences of other countries are
considered therefore as precedents in any discussion of possible reforms.
45
I. Developments in Other Countries
Reforms dealing with disclosure of administrative documents, protection of
confidentiality and giving of reasons for administrative decisions have been widespread
throughout the Western world. Yet, according to information at present available, only
California and France have reformed rules relating to immunity from execution. ^^ In
countries sharing the English constitutional tradition, it would be surprising for this
problem to be treated in isolation, because it is bound up with the more general issue
of Crown privileges and immunities. However, neither California nor France waited for
an overall reassessment of sovereign immunity or the theory of puissance publique
before undertaking or even contemplating changes.
A. The Situation in the United States
Sovereign immunity is a basic tenet of American public law. Recognized during
the post-independence years, this principle has been liberally interpreted and broadly
defined by the courts and the Congress. Despite legislative reforms that have tempered
its rigour, to this day it has remained more or less absolute in scope. Some writers
criticize the anachronistic nature of this privilege, given the State's growing commercial
activity. Naturally, such criticism is inevitable where liberal economic values run up
against an absolutist conception of the State.
1 . Survival of Sovereign Immunity
The desire of the American revolutionaries to break with the British constitutional
system was not as radical as is often thought. In America, the somewhat nebulous
principle of royal sovereignty was simply transposed to the State, with the same
consequences as in the motherland. This transfer materialized in "the doctrine of non-
suability of the State." American law adopted the premises of common law ("the King
cannot be sued without his consent") and made them absolute, all lawsuits being
automatically excluded (Carrow, 1960; Street, 1953; Schwartz, 1976: 563).
This somewhat surprising development may be explained by two factors, '^'^ of
which only the first is truly legal. Although the Monarchy had been suppressed. United
States courts still concluded that the petition of right, which was the traditional way to
claim damages from His Majesty, implied the idea of consent or permission from
public authorities.^^ As His Britannic Majesty's successor was none other than the
73. Two Australian states, Queensland and New South Wales, should however be given credit for allowing,
in 1866 and 1912 respectively, means of compulsory execution against property of the Crown in order
to satisfy a judgment, either when the coffers of the Treasurer-Paymaster General were empty, or when
no moneys had been allocated by Parliament for that purpose. For other state and federal authorities,
immunity remains the rule. See Campbell, 1969: 144; Renfree, 1984: 570.
74. "Why the English theory of sovereign immunity, in origin personal to the King, came to be applied in
the United States is one of the mysteries of legal evolution" (Street, 1949a: 342).
75. This is the concept of consent; see Borchard, 1924: 4.
46
legislature (the various elected assemblies on both the local and federal level), the
latter' s silence could only be construed as a lack of recognition of the State's liability
in tort (Jaffe, 1963: 2). For purely pragmatic reasons, politicians at the time were wary
of according such consent. This leads to the second factor, which is purely political,
for the perpetuation of this ancient immunity, now expressed as: "The State can do no
wrong."^^ To protect national sovereignty, private interests could not be permitted to
claim any form of pre-eminence over those of the State.^^
To pre-empt a too liberal interpretation by the Supreme Court of individual legal
rights vis-à-vis the State, in 1798 the eleventh amendment was enacted. This withdrew
from the courts the power to allow lawsuits in common law or equity against any of
the United States (Guthrie, 1908; Tribe, 1978: 129). In this way, sovereign immunity
was crystallized and became "a natural principle" of public law.^^ Courts in the
nineteenth century freely referred to necessity (see Mr. Justice Gray in Briggs v. Life
Boats), wisdom, inconvenience (Pound, 1944) and general interest in support of the
principle. ^^ By the end of the century, the justification had evolved from necessity to a
theory of legal positivism. In 1907, Mr. Justice Holmes declared the State to be
sheltered from all lawsuits, not by virtue of some obsolete theory based on the
Monarchy but for logical reasons, as no individual could have rights against the
lawmaking authority (Kawananakoa v. Polyblank; The Western Maid). Other judges
simply invoked the public interest, stating that they preferred to see isolated individuals
suffer than to see hardship imposed on the public (Laferrière, 1963: 22)!
These arguments have helped to make sovereign immunity a watertight principle.
American law does not even allow the petition of right. **° In light of subsequent
developments it is significant that immunity from execution has become intimately
linked with immunity from any form of liability in tort. Indeed, the two immunities
have the same origin, the former being merely the extension of the latter.
With no judicial remedy analogous to the petition of right, special legislation was
the only way for an individual to obtain compensation. Harm could only be repaired by
a private Bill of Congress, something which depended on a purely discretionary
76. Hamilton affirmed that "[t]he contracts between a nation and individuals are only binding on the
conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of
action, independent of the sovereign will" (1917: 126).
77. In reality, the decisive factor was far more prosaic. Heavily in debt because of the War of Independence,
the States above all did not want their creditors to be able to compel repayment (Laferrière, 1963: 13).
78. Watkins, 1927: 194. This author notes that "the doctrine of immunity originated as a physical fact,
[and] was accepted and applied without attempts at justification" (p. 197).
79. In an 1882 case, U.S. v. Lee, the Supreme Court declared:
That maxim is not limited to a monarchy, but is of equal force in a republic. In the one, as in the
other, it is essential to the common defence and general welfare that the sovereign should not,
without its consent, be dispossessed by judicial process of forts, arsenals, military posts, and ships
of war, necessary to guard the national existence against insurrection and invasion; of custom-
houses and revenue cutters, employed in the collection of the revenue; or of light-houses and light
ships, established for the security of commerce with foreign nations and among the different parts
of the country .... The principle is fundamental, applies to every sovereign power, and, but for the
protection which it affords, the government would be unable to perform the various duties for which
it was created.
80. "Not only the petition of right but, I would suppose, some of the ground covered by monstrans de
droit, traverse and bills in the Exchequer and Chancery become unavailable" (Jaffe, 1963: 19).
Similarly, see Goodnow, 1905: 387.
47
assessment of the validity of the complaint and on solid political support from
congressmen (Gellhom and Lauer, 1955; Holtzoff, 1942; Shumate, 1942). In this waya very uncertain system of compensation developed, with the courts relying on "the
good faith of the United States" (Stewart, 1979: 816) to ensure payment of legislated
awards. The system had many practical defects, because the growing stream of
applications for compensation led Congress to depend exclusively on specialized
commissions too easily influenced by favouritism (Luce, 1932; Field, 1946). As early
as 1855, measures were taken to correct this situation, notably through the creation of
a specialized tribunal. ^^
In response to growing problems in the twentieth century, a major reform, the
Federal Tort Claims Act,^^ was introduced in 1946. It made the "Federal District
Courts" courts of first instance to hear tort claims against the Government, with an
appeal to the "Court of Claims" and the Supreme Court (Klee, 1983: 7; James, 1955).
Despite its significance, the statute still left intact the principle of immunity in tort. For
claims falling outside the Act, Congress alone retains the authority to award
compensation (Davis, 1970: 403; Gellhom and Lauer, 1955: 4). "Purely out of concern
for fairness," Congress continues to judge whether or not public funds should be used
to satisfy private claims. Even if the Federal Tort Claims Act seemed to represent
significant progress, the principle of immunity did survive in many areas of
administrative action. This continues to be the case despite further amendments in 1966
and 1974 (Stoutamire, 1980; Scott, 1978). Today, for example, the statute contains no
less than thirteen exceptions to its scheme of liabiHty (Klee, 1983: 15).
The point to retain from this discussion is that American law has had considerable
difficulty abandoning the theory of sovereign immunity. Although some State
legislatures have enacted schemes of liability in tort roughly modelled on rules of
private law, ^3 numerous exceptions still help to ensure the survival of sovereign
immunity. In fields other than tort, the rule of absolute immunity remains unscathed.
Absent a statute explicitly authorizing compulsory execution against State, county or
municipal property, immunity remains the rule.*"* In addition, courts have endorsed the
81. In this way, the "Court of Claims," a federal institution, was created in 1855. Though not a full-
fledged court, it still had the responsibility to study claims for compensation and to submit a report to
Congress (Crane, 1920; Richardson, 1882). The commissions of Congress still retained the power to
rule on the admissibility of claims. In 1863, the Tucker Act transformed the Court of Claims into a
genuine tribunal, subject to the concurrent jurisdiction of the "Federal District Courts" and a right of
appeal to the Supreme Court for sums greater than $3,000. However, this tribunal only had jurisdiction
in disputes arising from contracts, with tort actions to be presented directly to Congress. Civil liability
remained a congressional prerogative. Far from proceeding exclusively by private bill in order to settle
disputes on an ad hoc basis. Congress introduced some partial exceptions to the general principle of
non-liability of the State (Gellhom and Schenck, 1947). For example, special schemes were enacted
between 1900 and 1946 in the fields of patents, oyster farming and marine matters. However, these
exceptions were shown to be plainly insufficient.
82. It is Title IV of the Legislative Reorganization Act. For more on this, see particularly Steadman et ai,
1983: 243.
83. In 1976, only twelve States had agreed to introduce a legislative reform in this area. It can safely be
stated that immunity remains the rule and liability the exception. See Schwartz, 1976: 568.
84. Under American law, the State cannot be compelled to perform a specific act. "Suits for specific
relief" are inadmissible under the Federal Tort Claims Act and the Tucker Act: "No specific relief in
the absence of statute" (Steadman et al., 1983: 137). This immunity is based on the rule that "the
sovereign cannot be subject to any burden originating in the courts — the courts cannot direct the
sovereign" (id.: 250). In the case of inaction by the authorities, quite often the only alternative for the
individual is a suit in damages. See Warner, 1967: 818.
48
view that "a statute authorizing an action against the State is not to be extended to
authorize a seizure of property to satisfy a judgment recovered in such action. "^^
Execution or, more generally, satisfaction of judgments depends exclusively on the
good will of Congress or State legislatures which are the only organs that can authorize
disbursement of funds. ^^ For courts to authorize the seizure of public domain property,
which is deemed '"out of commerce' and not subject to seizure and sale for satisfaction
of judgments" (Patrick III, 1977: 983), remains unthinkable. Qualification of State
assets as being in the public interest thereby reinforces the principle of immunity from
execution.
The principle of sovereign immunity remains the real basis of immunity from
execution, so much so that it cannot be properly understood and evaluated without
reference to its historical development. Law reform, even in California, bears the
weight of this tradition.
2. The California Reform
The situation in California is very similar to that at the federal level. A statutory
scheme of State liability, the California Tort Claims Act,^^ was enacted in 1963.
Previously, the liability regime comprised a mix of common law and special statutory
rules. Prior to this statute, the courts took the lead and innovated considerably (the
Muskopf and Lipman cases*^).
Since 1963, State liability is derived solely from statute. In the absence of express
provisions creating liability, the rule of immunity continues to operate in favour of the
Administration; common law rules cannot constitute an alternative source of liability.
Fortunately for potential plaintiffs, there are fewer grey areas than elsewhere in the
United States, and this statute is often described as "the most comprehensive statutory
scheme of governmental liability in the United States" (Klee, 1983: 33). However,
immunity still remains the rule in the exercise of discretionary power, as well as in
legislative and regulatory matters. Failure to enforce statutes or to proceed with an
inspection falls within these exceptions.
As elsewhere, immunity from execution also remains the rule, even if the rules of
liability have evolved considerably. Although the Government Code provides somerules for payment of a judgment against the State, ^^ there is still no way of compelling
execution by the State.^ In principle, "the property of the state is exempt from
execution except in those rare instances where a state expressly provides otherwise"
85. 30 Am. Jur. 2d, Executions, s. 195.
86. "Since 1977, Congress by statute has provided for the appropriation of whatever funds are necessary to
pay all final judgments rendered against the government" (Stewart, 1979: 818).
87. These have become sections 810 and 996.6 of the Government Code. On this special scheme, see
Nelson and Avnaim, 1974; Chotiner, 1968.
88. Fearful of the consequences of this new precedent, the authorities responded in 1961 with a moratorium
{Moratorium Act of 1961) which was a prelude to the important 1963 reform.
89. Ss. 912.8, 920 to 920.8, 925 to 926.8, 935.6, 955.5, 965 to 965.4.
90. "The ordinary remedies of a judgment creditor under the Code of Civil Procedure are seldom resorted
to and are not an effective means to collect a judgment against a public entity" (California, 1980:
1262).
49
(California, 1980: 1262). The only exception to this principle is at the "local" level
(for example, towns and counties, school districts): property that is not used for the
public interest is subject to execution process. This shows a concern with adapting
execution remedies to the nature of administrative activities.
In its 1980 report, the California Law Revision Commission proposed several
important reforms to "the enforcement of claims and judgments against public entities"
(id.: 1261). The report noted that execution remedies provided by the California Codeof Civil Procedure are not available "to collect a judgment against a public entity"
(id.: 1262). In California, as elsewhere in the United States, the "property of the state
is exempt from execution" (ibid.), and this may create situations which are harmful to
the individual. In the absence of any right to execution, even for monetary
condemnations, the individual must negotiate with the administrative entity in question.
The latter may set up budgetary imperatives to defer payment. Everything is left to the
good will of public authorities, who may ultimately decline to take any positive action
that might entail expenses not foreseen in annual budgets.
To give execution creditors a meaningful right to enforce a judgment rendered in
their favour, the California Law Revision Commission proposed that all State
authorities, whether local or central, be required to pay a money judgment. On the
local level, it proposed that the recalcitrant authority be eventually compellable by writ
of mandamus (id.: 1263). On the State level, however, such a scheme would not workif the finance direction determined that no budget credit was available, for only the
legislature can authorize new budget credits. The payment procedure is relatively
complicated; the State Board of Control remits money after obtaining a certificate from
the finance director attesting that funds are available to satisfy the judgment.
The reforms proposed by the California Law Revision Commission went no
further. Indeed, in the chapter on compulsory execution it recommended that "it should
be expressly provided by statute that execution and other remedies ordinarily used to
enforce a judgment are not available to enforce a money judgment against a public
entity" (id.: 1262). This is the general rule, no matter how property belonging to
public authorities is used. This recommendation takes into account the special nature of
State functions, and the fact that previous experience shows that the "levy of execution
on public property has not been an effective method of enforcing a judgment against a
public entity" (id.: 1266). For example, subsection 12.10(c) of the Louisiana
Constitution specifies that "[t]he Legislature ... shall provide for the effect of a
judgment, but no public property or public funds shall be subject to seizure" (Patrick
III, 1977: 985).
The changes proposed in California are really quite disappointing. Their principal
weakness is that they only contemplate money judgments, and do not propose an
overhaul of immunity from execution generally. They also leave in limbo problems that
arise when authorities refuse to respect a mandatory judgment. We have already seen
in such circumstances that common law remedies, such as the injunction and
mandamus, are only of limited effectiveness.^' American authors consider the current
situation to be "a capricious system," a source of arbitrariness and inequality (Patrick
III, 1977: 990). They continue to call either for outright abolition of the principle of
sovereign immunity (ibid.; Zale, 1973), or at least for better safeguards (Stewart, 1979:
845; Ripple, 1971). The gap between its absolute scope and the real dimension of State
91. See supra, p. 32. For American law, see particularly Brill, 1983.
50
activities is currently too broad. If the State enlarges its realm of commercial activities,
egalitarian demands aimed at making business dealings more secure are inevitable. ^^
Therefore, the immunity in principle enjoyed by public authorities in common law
systems is under attack (Lloyd, 1949). With respect to liability in tort as well as
compulsory execution, this immunity has withstood many reforms. Consequently, it is
necessary to verify whether "the other system," that of the Continental tradition, has
developed other solutions to these problems.
B. The French Reform of 1980
With Law No. 80-539 of July 16, 1980, ''relative aux astreintes prononcées en
matière administrative et à l'exécution des jugements par les personnes morales de
droit public, ''^^ France has considerably modified the immunity that was previously
enjoyed by the Administration. '^'^ Critics have been quick to hail this victory over
another [Translation] "bastion of Administration privilege" (Linotte, 1981) which
has put an end [Translation] "to the scandal ... resulting from non-execution or
delayed execution of courts' decisions by the Administration."'^^ Unlike the French civil
judge, who has the power to impose damages or to issue an injunction against the
Administration (Le Berre, 1979), administrative judges had never arrogated such power
to themselves, which is surprising considering their boldness in many other areas. Theobstacle seems to have been the principle of separation between administrative courts
and administrative action, a feature of the law which contributed to the creation of the
Conseil d'État — passage from retained justice to delegated justice (Chevallier, 1970).
Administrative judges are not allowed to "act as administrators" by means of injunction
or other mandatory remedies (Chevallier, 1972); nor can they directly usurp the
Administration by exercising a "reformatory power" similar to that existing in Germanlaw.^^ Their self-restraint, an invitation to administrative misconduct, made legislative
reform necessary, and this finally came to pass in 1980. Under somewhat different
circumstances, legislation to introduce astreinte was also enacted in the Belgian (1980)
and Dutch (1978) systems. However, in these latter countries the judges themselves
undertook to extend its application to public authorities (Moreau-Margreve, 1982: 75).
92. On this point, there is growing criticism in fields that do not fall within public law, such as private
international law, commercial law and business law. These attacks may be more forceful because they
are not tempered by the same inhibitions with respect to the phenomenon of the "State."
93. A.J.D.A. 1980, 504; y.C.P. 1980.3.50161.
94. See supra, p. 19. For further comments on the phenomenon of non-execution see Weil, 1965: 254.
95. Tercinet, 1981: 3. See also Distel, 1980; Baraduc-Bénabent, 1981; Bon, 1981.
96. [Translation] "At the end of the trial, a German pleader whose case is well founded is sure to
succeed. The administrative judge has a power of injunction and, in the case of restricted competence,
he may change the impugned administrative decision or impose his own where the Administration has
remained silent" (Fromont, 1984: 62). See also Eisenberg, 1959. Under Italian law, the administrative
judge has a similar power, because he can replace the administrative authority with a commissaria adacta who is entitled to act in the place of a recalcitrant Administration.
51
1. Astreinte in Administrative Law
The relatively large number of refusals to execute judgments (Braibant, 1961;
Lefas, 1958), as well as the absence of remedies similar to the mandamus or injunction
as it exists in English law (Gaudemet, 1977: 814), help to explain the vigour of the
French reform. To give the administrative judge a mechanism to compel the
Administration to act, private law techniques were simply extended to administrative
law. By allowing astreinte against public authorities, the legislator plainly overrode the
principle of immunity from execution. Astreinte is an effective stimulus to execution,
although it is important to note that it is an unusual remedy in that it attempts to
reconcile the freedom of the recalcitrant debtor with the need for effective means of
pressure. ^^
(a) The Unorthodox Character of Astreinte
Astreinte is considered to be an inherent power of the courts. The judge is said to
possess both jurisdictio (power to state the law) and imperium (power to coerce) (Burki,
1979: 40; Esmein, 1903). Astreinte, by which a recalcitrant debtor is subjected to a
provisional monetary sanction as an inducement to perform an obligation, ^^ is
particularly appropriate in the case of obligations to act or to abstain from acting. Thelegal nature of astreinte is quite subtile. It is neither an injunction nor an award of
damages (Fréjaville, 1951; Raynaud, 1964), and has been characterized in the following
translations: "means of pressure" (Baraduc-Bénabent, 1981: 95; Fréjaville, 1951), a
"judicial sanction" (Tercinet, 1981: 7; Bore, 1966), a "private penalty" (Kayser,
1953: 244), an "immediate threat" (Savatier, 1951: 37), a "warning" (Fréjaville,
1949: 2-3), a "process of constraint" (Burki, 1979: 40; Savatier, 1951: 40), "a blow"(Moreau-Margreve, 1982: 12). Astreinte is not an order to act in a given way, as this is
the preserve of injunctive relief. Astreinte is a civil sanction (not a fine) that imposes a
monetary penalty for failure to respect a judgment. *^^ In this way, [Translation] "it
appears as a penalty and as an arbitrary measure of indirect compulsion, expressly
conceived to be different from a means of execution" (Le Berre, 1979: 15). This
distinction is particularly important, because in France also compulsory execution does
97. During the travaux préparatoires of the Belgian law of 1980, the "autonomous nature" of astreinte
was used to create [Translation] "an original means of coercion" (Moreau-Margreve, 1982: 41).
98. Fréjaville, 1949. The power to pronounce astreinte was officially accorded to the judicial judge by LawNo. 72-625 of July 5, 1972, which adopted the principles set out by the Cour de Cassation.
99. [Translation] ''Astreinte consists of a monetary condemnation which is necessary to a principal
condemnation and conditional upon the inexécution or late execution of the latter. It is said to be
definitive when the court irrevocably establishes the amount; it is said to be provisional when, on the
contrary, the fact of non-execution has been officially communicated. The procedure is effective
because it brings pressure to bear on the debtor who executes the principal decision in order to avoid a
monetary condemnation" (Massé, 1984: 661).
52
not lie against public entities, '°^ including industrial and commercial public services. '^^
If astreinte is not a genuine execution remedy, it may consequently seem ineffective in
challenging the general immunity from execution enjoyed by the entire French
Administration. Its nature is unique, because it does not involve direct material
constraint which, as in the case of seizure, can only be imposed by public powers. It
can be available in administrative law without the State's losing its immunity fromdirect execution. But to the extent that astreinte' s function is to compel execution byindirect means, it nevertheless overcomes the hurdle of State immunity. By its nature
and its purpose, it is a completely novel form of compulsory execution.
Astreinte is an attractive remedy because it reconciles the need to accord the judge
a means of coercion against the Administration while at the same time allowing the
latter to enjoy its traditional autonomy. Incidentally, it is this spirit of reconciliation
which best characterizes the institution in private law. Indeed, [Translation] "this
method, which consists in requiring the debtor of an eventual judgment to remit a sumof money if he refuses to honour his debt, does not threaten his physical or moral
integrity as would be the case with forced execution manu militari'' (Massé, 1984:
687).
Respect for the debtor's integrity is of particular significance when the latter is
none other than the State! In France, [Translation] "[t]he mechanism of astreinte
gives the debtor the choice between speedy execution of an obligation and payment of
a large sum of money, one which is out of all proportion to the harm which results
from non-execution" (Tercinet, 1981: 7). Clearly it is a [Translation] "private
penalty" (Fréjaville, 1949: 1) which in no way prevents a subsequent or cumulative
award of damages. ^02 As Tercinet points out, it leaves the Administration to draw its
own conclusions from censure by the courts, and does not [Translation] "dictate anyspecific administrative conduct" (1981: 7). This respect for administrative autonomy is
no small matter, for although the Administration is bound to follow the law, it mustalso have a minimal degree of freedom in deciding how to do so. This concept of
indirect constraint is what makes the French reform so interesting.
(b) Conditions of Application
The July 16, 1980 statute, like other French legislation, was drafted laconically.
Section 2 provides that astreinte may be pronounced [Translation] "in the case of
non-execution of a decision rendered by an administrative tribunal." '°^ The
100. [Translation] "[P]roperty of the administration, public funds and coqjoral property are exempt from
seizure" (de Laubadère, 1980: 515); Jacquignon, 1958. See also Vedel and Delvolvé who note that
[Translation] "there are no private means of execution against the Administration" (1982: 724). Evenif several authors affirm categorically the existence of this immunity, Delvolvé still stresses
[Translation] "its uncertain basis and the vagueness of its scope" (1983-84: 129). Concerning its
scope, see also Amselek, 1986.
101. Tercinet, 1981: 5. It should, however, be noted that recent case-law allows execution process against
industrial and commercial public institutions under certain conditions (Delvolvé, 1983-84: 131;
Gaudemet, 1984: 565-9).
102. [Translation] ''Astreinte may be added to damages. If astreinte itself becomes damages, combination
is impossible" (Fréjaville, 1951). See also Baraduc-Bénabent, 1981: 99.
103. See supra, note 93.
53
administrative judge is left to determine what constitutes [Translation] "non-execution of a decision," and may have reference to a threshold beyond which non-
execution is considered manifest.'^ Unfortunately, section 2 does not explicitly take
account of situations of partial or defective execution (Baraduc-Bénabent, 1981: 97). It
remains for the courts to determine whether these possibilities constitute non-execution.
It is important to note that the Conseil d'État is the sole authority to pronounce
astreinte (section 2).
Section 3 provides that a declaration of astreinte may be definitive or provisional.
It is definitive when the monetary sanction established by the judge is not subject to
any subsequent revision, and is simply prorated to the damages that were actually
suffered (Rassat, 1967). This drastic approach is imposed where it is sufficiently clear
to the judge that non-execution is due to bad faith or gross negligence. The debtor is in
no position to invoke extenuating circumstances. No reduction is possible, and every
subsequent day of delay is charged at the "full rate" in calculating the sum that the
debtor ultimately must pay. In the case of provisional astreinte, the judge reserves the
right to revise his order in light of external factors which may influence execution, as
well as the debtor's conduct. In principle, astreinte is provisional and is only ordered
for a limited time period (Fréjaville, 1949: 3). Astreinte is measured in periods of time
(days, weeks, months) which may be renewed. The judge has complete freedom to set
the day which constitutes the departure point. '°^ The rate charged is usually quite high
in order to penalize the debtor heavily. Section 5 authorizes the Conseil d'État to credit
any revenue from astreinte either to the petitioner or, in whole or in part, to local
communities or groups via a special fund.
Although astreinte is a formidable coercive measure against public funds, the
reputation of the French Administration is so poor that even other safeguards were
legislated. The system of astreinte was strengthened [Translation] "by the
introduction of a personal financial liability of the public servant responsible for non-
execution," this liability to be imposed by the Budgetary and Financial Disciplinary
Court (section 7) (Tercinet, 1981: 10; Bon, 1981: 45). In addition, where moneyjudgments were not executed, it was originally planned to allow the judge a power to
104. After having been seized of roughly fifty applications for astreinte, and still having to rule on the
admissibility of an identical number of similar motions, the Conseil d'État gradually developed its
position on this subject. For a declaration of astreinte to be allowed, it seems that three conditions must
exist: (1) the scope of the judgment whose non-execution is alleged must be defined unambiguously;
(2) the refusal to comply must be manifested and prolonged; (3) execution of the judgment should not
cause more problems for public order than would result from non-execution. See specifically C.E. May17, 1985, "M"^ Menneret:' A.J.D.A. 1985, 454 and 399 (chr. S. Hubac and J.-E. Schoettl); Pauti,
1985; D.1985.J.537 (Note J.-M. Auby). A general review of this case-law shows that the judge rejects
petitions considered to be premature, above all when the Administration has already initiated execution.
Some delay is therefore necessary, and the individual must turn it to his account by summoning (by
letter or bailiff's service) the Administration to proceed with execution.
105. In the Af™ Menneret case, supra, note 104, the Conseil d'État ordered astreinte to come into effect
after a two-month delay period which began when the Administration received notification of the
Conseil's decision. In so acting, it allowed the authorities concerned time to take the necessary steps to
reach an amicable settlement. The effectiveness of astreinte ultimately is to be found in its dissuasive
aspect.
54
order allocation of the necessary funds J°^ However, this was considered too
revolutionary, because it encroached upon the principle of separation of powers, and
was dropped during the legislative debates in favour of the existing section 1, which
requires the public accountant to pay automatically. Funds must be allotted during the
four months following notification of the decision, failing which the public accountant
must do so on his own initiative. This innovation bears some similarity to English law,
where the Minister or budget director of some states and provinces must automatically
pay a money judgment. '°^ This is, moreover, a feature of the California reform. '^^
In general, French commentators welcomed the reform, considering it to represent
substantial progress. '°^ However, some critics deplore the fact that these newmechanisms require the execution creditor to return to court to get an astreinte order
(Distel, 1980: 73). Yet the same would be true if mechanisms of private law were
admissible against the Administration. Whatever the solution, where there is non-
execution, additional action by the individual is inevitable. In the search for reform,
could the same be achieved in Canada through a mechanism similar or comparable to
astreinte!
2. Evaluation of Astreinte in the Reform of Canadian Law
Although the French reform does more than introduce astreinte to administrative
law, the technique is certainly the centrepiece of this statutory scheme. In the study of
possible Canadian reforms to immunity from execution, astreinte deserves close
scrutiny because it was conceived as a solution to analogous problems. First, however,
it is necessary to assess whether astreinte already exists in Canadian law in some form
or another.
(a) Absence of a Principle of Astreinte in Canadian Law
Because astreinte is part of French law, it might be thought that this remedy also
exists in Québec civil law. However, it is completely unknown to Québec law. Although
Québec has preserved the civil law tradition, the Superior Court, created in 1849, is
vested with the powers accorded in England to the "Court of King's Bench," and as
such deploys contempt of court (Lemieux, 1981: 18) to repress acts or conduct that
might discredit its authority. However, they could quite easily have made use of a civil
mechanism such as astreinte, because several French execution recourses also appear
in Québec law. • •^ At the time the Québec Civil Code and Code of Civil Procedure were
106. [Translation] "Enforceable court decisions that have become res judicata and that condemn the State,
a community or a public institution to pay a sum of money are equivalent to an order to pay the
amounts in question.
The creditor obtains payment of these sums simply by presenting the treasury accountant with a copy
of the decision in enforceable form." [Draft statute]
107. Subsection 24(4) of the Proceedings Against the Crown Act of Alberta. See also the Saskatchewan
(s. 19(4)) and New Brunswick (s. 17(3)) statutes.
108. See supra, p. 50.
109. Vedel, Addendum to the seventh edition of Droit administratif, 1980: 107. See also Bon, 1981: 50.
110. For elements of comparison, see Vincent and Guinchard, 1981: 735 ff.
55
drafted, the French civil judges had only begun to assert the right to pronounce
astreinte. Since there were many objections to this praetorian creation in the legal
literature of the time (Le Berre, 1979: 15), it is not surprising that astreinte never
crossed the Atlantic; besides, Québec judges already disposed of the formidable weaponof contempt of court. Moreover, although section 46 of the Code of Civil Procedure is
drafted very broadly and gives judges "all the powers necessary for the exercise of
their jurisdiction" it is unlikely that astreinte could now be ordered in Québec. Section
46 suggests that the Québec judge has considerable freedom in imposing his authority.
Probably owing to judicial self-restraint, the courts have held that these powers are
only complementary powers necessary for the performance of a principal act
{Association of Food Merchants of Montreal v. L'association des détaillants en
alimentation du Québec; C.T.C.U.M. v. Syndicat du Transport de Montréal). The cases
confirm that [Translation] "this provision's only purpose is to facilitate the exercise
of a right by a proceeding that is not incompatible with the rules of the Code, and not
to authorize the courts to create any special remedy" (Vermette v. Daigneault). Such
an interpretation is hardly conducive to judge-made remedies. ^^^
(b) Comparison with Contempt of Court Proceedings
Given the absence of astreinte in Canada, it is instructive to compare it with the
mechanism that takes its place. French jurists have already observed that astreinte plays
the same role in French law as contempt of court does in English law (Linotte, 1981;
Tercinet, 1981: 10).^'^ In both cases, a recalcitrant judgment debtor is forced to respect
a judgment under the threat of a severe financial penalty, and, in the case of contempt
of court, the possibility of imprisonment. In both cases, the debtor must personally
comply with the judgment; execution process does not issue, either against him or
against a third person. This explains why in Québec and the rest of Canada contempt
of court principally sanctions mandatory judgments such as injunctions. Of course
astreinte and contempt of court can still be deployed to ensure respect of any judgment
which precisely states the obligations of the judgment debtor.
In civil proceedings the two remedies have practical similarities in that they use
financial constraint to reprimand non-compliance with judicial orders. However,
contempt of court has a more general scope. It can be used to repress any conduct
likely to interfere with the judicial system or the authority of a court. ^'^ By comparison,
astreinte can be sought only in the case of a failure to execute a judgment. After all, it
was created specifically for this purpose. Taking the analysis a step further, one can
see differences in the nature of the sanction imposed. Astreinte is essentially a monetary
penalty that the judge may order in civil proceedings. Although commentators have
frequently reasserted the existence of civil contempt, contempt of court is above all
111. In a fairly recent case, the Québec Superior Court refused to innovate using section 46 of the Code of
Civil Procedure order to repress a case of violation of res judicata, specifically an interlocutory
injunction {Commonwealth Plywood Cie Ltée c. Conseil Central des Laurentides).
112. On this point, we have our doubts that French and Canadian law can be reconciled based on a
comparison between astreinte and injunction, as is suggested by Massé, 1984: 660.
113. On the distinction between contenipt in facie and ex facie, see Popovici, 1977: 47.
56
criminal in nature as it may lead to imprisonment. This latter dimension of contempt of
court has been noted by the Law Reform Commission of Canada, which favours its
"criminalization."''^
Consequently, although their purposes are similar, astreinte and contempt of court
are quite different. Contempt of court is by nature repressive and accusatory, with
criminal law overtones, whereas astreinte is one of a range of execution recourses,
although it does have a special status. Contempt of court is retrospective, because it is
intended as a definitive sanction for an accomplished fact, while astreinte is
prospective, because essentially it contemplates performance of an act. Here a moneyjudgment is subordinated to some principal obligation. Unlike the peremptory and
definitive nature of contempt, astreinte is more orientated towards a specific end.
Fundamentally, it is a pressure tactic to obtain real compliance with a judgment. As a
means of financial pressure, it therefore has no real counterpart in English-speaking
countries.
As a civil remedy for failure to execute judgments, astreinte deserves serious
study. In 1949, Street noted that "this measure [the author referred to it as a 'pecuniary
judgment'] seems to be the most progressive yet adopted for the enforcement of
judgments against this government, and the adoption of a similar rule in the British
Commonwealth merits careful consideration" (1949: 44). In the contemplation of newsolutions, astreinte should be the subject of more detailed examination, specifically
from the standpoint of the issue of civil versus criminal sanctions. We return to this
theme in Section II: II. Recognizing a Right to Execution.
II. Academic Commentary
Under English law, sovereign immunity from execution has rarely raised muchcritical interest. Some deem this further evidence that no problem exists. Harlow does
not agree, and considers that "the English are distressingly inclined to feel that
problems which are not discussed do not exist." On the contrary, "this problem does
exist and needs discussion in order to alert public opinion to its existence" (1976: 133).
This author's efforts do not compensate for such prolonged silence, and only
infrequently and indirectly — for example, in general comments on Crown privileges
and immunities — has there been any perceptible reaction. Even if the Crown's
privileged status were to come under general attack, it is hardly possible to find any
real desire for change with respect to execution against the Crown.
114. Canada, LRCC, 1982: 43 and 21. Even if the Law Reform Commission of Canada agrees that civil
contempts remain appropriate where a judicial authority is impeached, it nevertheless recognizes the
preponderance of criminal law in contempt of court matters. With the tabling of Bill C-19 in February
1984, the Commission's recommendations have been largely adopted by the authorities, because the
new section 116 of the Criminal Code would provide that disobedience of "a lawful order" made by a
court would be an indictable offence or one punishable by summary conviction (sections 131.1 to
131.22 of the Bill reflect the importance accorded to criminal procedure). If the new Government
eventually intends to follow up on it, this legislative reform may be the culmination of an evolution that
has already been apparent for some time.
57
Taking an overall view in the light of comments from throughout the
Commonwealth, the United States and France, some major points do stand out. The
basic problems are the same everywhere. There is general criticism, to differing
degrees, of immunity from execution, all with a view to enhancing protection for the
individual. Few commentators believe or hope that the courts can correct this situation
on their own.^^^ Legislative reform is the generally preferred solution. ^^^
Proposals for reform often favour monetary sanctions. For example, Harlow
considers that English law has ignored the possibilities provided by traditional damagesuits, adding that "French law shows that damages in administrative law have the
double purpose of compensation and sanction" (1976: 133). Indeed, French authors
have proposed [Translation] "introducing liability of the puissance publique as a
convenient means of ensuring the effectiveness of judgments to quash" (Josse, 1953;
Braibant, 1961: 64). American writers make similar observations. Stewart has attempted
to deduce a remedy in damages from the general formulation of the fifth amendment to
the Constitution, which states that private property may not "be taken for public use
without just compensation" (1979: 824). She goes even further in stating that this
constitutional renunciation of sovereign immunity logically implies allowing the courts
a power of compulsory execution: "The fifth amendment compels the conclusion that
the same courts which are commanded to state the results of its protection be
empowered to enforce those results" {id.: 825). American judges, however, do not see
things the same way. Faithful to the English public law tradition, they require clear and
express abrogation of sovereign privileges by appropriate legislative bodies.
The prospect of monetary sanctions or damage judgments has aroused critical
interest. The result is no surprise. Virtually everywhere, jurists are trying to reconcile
existing immunities with the need to provide the courts with effective sanctions. Fewhave supported an unreserved use of means of compulsory execution against the State
or against public organizations."^ Rather, the general tendency has been to promote
mechanisms that can compel and punish the authorities yet without suppressing
privileges which seem indispensable, in light of the special nature of administrative
action. Respect for existing immunity is often implicit in nature. Many reformers
venture no comment whatsoever on the very relevance of immunity from execution. Its
continuation appears self-evident, and this only begs the question. It is as if the weight
of historical tradition and particularly powerful psychological obstacles render
inappropriate the very idea of a critical reappraisal. Irrational factors may well play a
role in reforming the legal status of the Administration (Canada, LRCC, 1985: 26-7),
making recourse to an approach that is directly based on contemporary reality
inevitable.
115. This was particularly the case in France, where some commentators invited the Conseil d'État to accord
itself the power to pronounce astreinte. On this point, see Chevallier, who notes that [Translation]
"legislative intervention does not seem to be indispensible: it would be enough for an administrative
judge ... to improve the scope of his review" (1972: 89).
116. In this respect, it is worth noting that the insistence of French legal literature in denouncing the few
isolated cases of non-execution helped contribute to a major reform.
117. [Translation] "There is no reason to justify the immunity from seizure of property which is used by
a public body or corporation in the normal course of executing its mission. On the contrary, the threat
of seizure may have a beneficial effect by disciplining careless or negligent administrators; it is,
moreover, a measure of equity for creditors and there is no reason to frustrate them" (Garant and
Leclerc, 1979: 521).
58
Section II: The Reality of Modem Administration
The above review shows that reform is possible. Other countries have faced
identical problems and have endeavoured to resolve them. With the exception of two
Australian states to which reference has already been made (see supra, note 73), no
foreign reform actually permits compulsory execution against State authorities.'^* Even
in the Netherlands, where the State has no immunity, [Translation] "some property
has been judged to be essentially too public in nature to be subject to means of
execution of ordinary law" (Pâques, 1983: 434). Generally, the possibilities of coercion
by the courts are only indirect in nature, with immunity remaining the rule. As the
latter's strengths and weaknesses have not been directly evaluated, our study cannot
lose sight of this fundamental point. The real question is, therefore, whether private
law rules of compulsory execution should apply to the federal Administration as a
whole, or whether they should be adapted to the special nature of administrative action.
I. The Problem Defined
Although it may seem to impeach the dignity of the State, subjecting the federal
Administration to ordinary execution process must at least be discussed. Of course,
there is considerable resistance to the idea of compulsory execution against public
authorities (Pâques, 1983: 434). Is it not "going against nature" to allow the seizure or
sequestration of State property?"^ And yet this is the view of one school of thought in
administrative law which is no longer convinced of the special nature of the
Administration. Nevertheless, the radicalism of this solution is no more than the
inevitable counterpart of existing immunity. The excessive rigidity of both approaches
ignores the intrinsic pluralism of the modem Administration. The varied nature of
118. This strict principle has been somewhat eased in some systems. For example, in Italy a distinction in
the Civil Code has been made between "domain" {demanio) and "estate" (patrimonio) with respect to
State, provincial and communal property. Although the domain remains inalienable and not subject to
seizure, the estate is divided into "unavailable estate" and "available estate." The unavailable estate
consists of property that cannot be subject because of its location (dams, bridges, roads, public
buildings and so forth), therefore remaining exempt from seizure. On the other hand, the available
estate, such as State income (interest, rents, duties) may be subject to compulsory execution. There is
a similar distinction in German law. The German Federal Republic Code of Civil Procedure
distinguishes between "administrative estate" and "financial estate" (the famous "Fiskus" theory
from ancient law). In the latter case, it must be clear that the State does not act as the public power in
participating in legal relationships of private law (allegemeiner Rechtsverkehr). Although the first
category encompasses property that is essential to the fulfilment of public service missions, the second
is made up of property administered to generate revenue. The federal authorities enjoy total immunity,
while the Lander remain subject to compulsory execution. Such a distinction in English law only
applies to local authorities (municipalities and school conmiissions, for example) using the traditional
public/private domain dichotomy.
119. [Translation] "It remains unthinkable to subject the public Administration to the general scheme of
compulsory execution process with respect to certain items, because of the principle of inalienability of
public domain property that is used on behalf of the collectivity. Because the latter is the real owner of
State property, the public interest and the proper operation of essential services cannot be sacrificed in
order to satisfy the interests of a single individual" (Garant, 1985a: 968).
59
administrative action dictates a differential approach, one that can best reconcile the
extension of individual rights and liberties with the untroubled operation of public
services.
A. Pitfalls of the Egalitarian Approach
Although scholarly comment on the subject is still somewhat amorphous, the
egalitarian approach reflects the Administration's evolution over the last several
decades. In Western countries, this period has been characterized by the involvement
of the State in what are traditionally private sector activities. At the same time, the
special nature of administrative action has been far more relative than in the past.
Under existing law, positing a rigid distinction among human activities based on
whether their objective is public or private would be no simple matter. Few activities
intrinsically belong to either the public or the private sector. Because the deck has been
reshuffled and old distinctions made more relative, the application of private law rules
to public authorities deserves consideration.
In American law, Ripple (1971) took this approach in his critique of the theory of
"sovereign immunity" '^^ by which, prior to 1976, foreign States enjoyed complete
immunity from execution. The development of international trade was hardly compatible
with such immunity because the American law enabled foreign Governments to avoid
their commercial obligations. The result was injustice and a lack of protection for manyAmerican businessmen. He concluded that "the principle seems no less sound that
when a sovereign takes the character of a private citizen, its commercial obligations
should be enforceable in the courts of the United States." '^i
Although this approach does not require that the entire domestic Administration be
subject to rules of private law, it still breaks with tradition in contemplating an
egalitarian system for activities similar to those of the private sector. It is hardly
surprising to find claims to equal protection when the State is involved in industrial or
commercial activities. And this is only one step away from a purely "egalitarian"
approach to all administrative action. Deprived of its attributes as the Crown or the
puissance publique, the Administration is reduced to the status of an ordinary debtor.
As early as 1949, dealing with the specific case of execution of judgments. Street
favoured the application of private law to the State (1949: 47). In 1936, in a minority
report by a Canadian Bar Association committee, it was suggested that "the most
obvious way of facilitating the enforcement of judgments against the Crown is to allow
execution against the Crown." ^^2 Not only was this generalization not accepted, it was
120. On this concept, see supra, p. 46.
121. Ripple, 1971: 382. In support of this position, he refers to the reasoning followed by the SupremeCourt in 1984 in Bank of United States v. Planter's Bank of Georgia:
It is, we think, a sound principle, that when a Government becomes a partner in any trading
company, it divests itself, so far as concerns the transactions of that company, of its sovereign
character, and takes that of a private citizen. Instead of communicating to the company its privileges
and its prerogatives, it descends to a level with those with whom it associates itself, and takes the
character which belongs to its associates, and to the business which is to be transacted.
122. Report of the Committee on Provincial Legislation and Law Reform, 1936 (referred to by Street, 1949:
41).
60
bluntly rejected in the drafting of the Crown Proceedings Acts (see supra, notes 4 and
5). According to Street, "it may be that some assets employed in connection with the
exercise of less important government functions could be liable to execution without
undue prejudice to the public interest" (1949: 42). The possibility of direct compulsory
execution against Administration property, even if only partial, is certainly thinkable.
Even in France, where the myth of puissance publique might be presumed
insurmountable, Tercinet has considered that bad faith on the part of the Administration
[Translation] "can only really be overcome by allowing execution process against
public bodies." '23
This egalitarian approach takes a confusing form in Canadian case-law.
Compulsory execution has been permitted against entities which cannot claim the status
of Crown agent, or, despite the recognition of this status, cannot for other reasons
claim one of the privileges normally granted to the Crown. '^^ A correct application of
the law in determining the legal status of the entity in question often leads to surprising
results. If the "egahtarian" approach were to be adopted, property vital to the
collectivity would be subject to seizure, as an astonishing precedent dealing with
hospitals indicates. While the common law associates hospitals with the public interest,
the immunity from compulsory execution enjoyed by such institutions is not absolute.
The Supreme Court decided as much in the Westeel-Rosco case when it granted
judgment in a mechanics' lien action. Because the hospital's board of directors was not
a Crown agent. Their Lordships agreed that a lien may give rise to a claim to the
hospital's holdback money, although Mr. Justice Ritchie added that "any sale of the
hospital property in the present case 'would be clearly contrary to the public interest
and should not be permitted'" (p. 245). He concluded that "the ultimate recourse for
123. 1981: 13. For industrial and commercial public institutions, some problems in applying the law of July
16, 1980 motivate Delvolvé to admit [Translation] "the need to allow common law execution process
to be used against them under the same terms as against private individuals" (1983-84: 134). TheFrench judicial judge shares this point of view, as is shown in a recent case in which compulsory
execution by garnishment was allowed against funds held by the State railway: Paris C.A., July 11,
1984; S.N.C.F.C. Groupement régional des A. S. S. E.D.I. C. de la région parisienne,'' D. 1985, 174.
124. An action based on the unconstitutionality of a statute may eventually provide an argument in favour of
allowing execution process of Crown privileges and immunities obviously depends on its validity. In
B.C. Power Ltd. v. Attorney General of British Columbia, the Supreme Court authorized appointment
of a receiver to administer the assets of a private company, the B.C. Electric Company. The effect of
this measure was to influence the monetary interests of the Crown, because the latter claimed to have
rights to the shares and assets of the company following a nationalization process. As the principal
dispute concerned the constitutionality of the nationalization laws, the receivership order thus appeared
as a provisional measure applicable to all parties to the dispute, including the Crown. However, in light
of these facts, immunity from execution does not really appear to have been threatened for two reasons:
(1) the receivership order was not aimed at property belonging directly to the Crown, but in reality at
private property on which the latter claimed to have rights; (2) relying on the unconstitutionality of a
statute in order to overcome immunity from execution is, at the very least, a rather difficult approach
whose applicability is limited. The Amax Potash case is a good example. While awaiting a decision onthe constitutional validity of a taxation statute, an application aimed at obtaining a provisional
preservation order directed specifically at the Government of Saskatchewan was dismissed. Had there
been a favourable response, the court was afraid this would amount to a ruling on the merits of the
principal dispute!
Recent case-law of the Supreme Court may favour the advent of restrictive solutions with respect to
immunity from execution. Relying on the Eldorado case, it may be that Crown agents are unable to
invoke immunity from execution when they commit illegal acts or fail to act within the framework of
statutory objectives. All of this still remains hypothetical, as the Eldorado case, in which the concept
of legality was interpreted very liberally, clearly shows.
61
the enforcement of the mechanics' lien is recovery from the proceeds of the sale of the
property" (ibid.). By allowing satisfaction of a lien from the hospital's holdback moneyor by recourse to judicial sale, the judgment clearly recognizes the principle of
compulsory execution against an institution of this type without, however, accepting all
of its implications, notably seizure. In this way, obstacles created by the "public
interest" have been reduced but in a way that seems to ignore its real significance.
Normally institutions (such as hospitals), whose functions are eminently social in
nature, should be sheltered from compulsory execution. The Manitoba Court of Appeal
took such a view in declaring in Re Shields and City of Winnipeg that the City of
Winnipeg's streets and sidewalks could not be subject to any mechanics' lien, invoking
"the public interest" and "the paramount right of the public."
In any case, Westeel-Rosco confirms a line of authority which seems to give
insufficient consideration to the public interest in property held in the public domain.
Several recent cases follow this approach. In 1981, the Québec Court of Appeal agreed
that a schoolhouse belonging to a school commission could be charged with a supplier's
privilege or lien:
Under present conditions when public bodies are engaging more and more in matters which
were considered to be in the private and commercial domain, the tendency appears to be to
restrict rather than extend immunities of the Crown and the public domain. (Alain Lavoie
Ltée c. Léo Lisi Ltée 297)
To see an analogy between education and commercial or industrial activities is
astonishing, unless schools are viewed as educational supermarkets î^^^ A recent case
dealing with the Gatineau Hospital is even more surprising {West Island Plomberie et
Chauffage Ltée c. Volcano Inc.). Not only was the supplier's lien on the hospital
allowed to stand, it was also held that the exemption from seizure provided by article
1980 of the Civil Code was not available. '^^
When these cases are compared with other decisions on the same topic,
inconsistencies in current law are revealed. That is, despite deploying the same
methodology for determining the status of Crown agents, courts sometimes afford
entities engaged in Crown business complete immunity, as in the case of Saskatchewan
Government Insurance Office. These inconsistencies result because existing law mainly
relies on formal criteria, rather than substantive standards grounded in a functional
characteristic of administrative action.
The desire for stricter control over Crown privilege has not had particularly happy
results. There is a danger in such an egalitarian tendency, which does not take into
account administrative action whose object or purpose lies beyond the realm of private
law (see Canada, LRCC, 1985: 59). In the interests of realism, some consideration of
the nature of administrative action is clearly required.
125. There is no point in blaming the court because the Education Act hardly left any other alternatives.
126. The judge did not directly rule on [Translation] "whether this body is a Crown agent" in order to
reach this result. He confined himself to noting that for construction work it was not subject to
Government control, so much so that it acted as a simple "ordinary corporation" becoming thereby
subject to rules of private law. By a literal analysis of enactments, Crown agents may thereby lose
some traditional immunities without the judge giving any special consideration to the purpose of their
mission. This interpretation seems too narrow, because it takes no account of the public interest
associated with hospital property, something which is essential to the public.
62
B. Characterizing Administrative Action
The above review suggests that some administrative action may well be exposed to
execution process without the public interest being affected. When the State operates
gas stations and casinos, is involved in mineral prospecting, undertakes the sale of
alcoholic beverages and organizes lotteries, it would seem safe to characterize these
generally as commercial and industrial activities of an administrative nature. However,
it is not easy to identify where the public or private interest begins and ends.*^^
Nevertheless, problems in locating this frontier are no reason to dismiss an approach
which isolates administrative activities of an industrial or commercial nature. This
frontier is best marked, not by invoking traditional organic and formal classifications,
but by applying a functional standard: the purpose of administrative action.
1 . A Purposive Distinction
As a general rule, a purposive distinction between commercial and public services
has not found favour with either courts or legislatures — the formers' attitude being
ultimately conditioned by the latters' incoherence. The prevailing distinction, between
the "Administration associated wholly or partially with the Crown" and the
"Administration which is not the Crown," has a purely institutional context, one that
follows its own logic and that pays little or no heed to the purposes of administrative
action. From an historical standpoint, these control criteria have managed to replace
purposive criteria in the identification of Crown agents. '^^
There have been some signs of change, however. The recent Act to amend the
Financial Administration Act in relation to Crown Corporations has introduced
purposive distinctions which take into account the nature of administrative activities.
As already pointed out in Working Paper 40 (Canada, LRCC, 1985: 54), there is nowa recognized distinction between industrial and commercial activities ("Crowncorporations") and purely administrative activities ("departmental corporations"). Thepublic/private distinction is also well entrenched in local Government law (Hutchins
and Kenniff, 1971), suggesting a possible alternative to the current scheme.
A dual system exists in the local Government law of several American States.
There, property in the private domain may be subject to compulsory execution if no
127. [Translation] "If we do not immediately see why the State may continue to enjoy the privilege
[immunity from compulsory execution] when it is involved in the activities of an individual, it is still
clear that the line separating it from the public interest, which was once limited to the classic
prerogatives of the State, has slipped in our time so as to include assistance to businesses and
sometimes commercial competition" (Pâques, 1983: 435).
128. For an analysis of this evolution, see specifically Garant and Leclerc, 1979: 493. As the authors show,
the failure of the "functional standard" results from growing divergence between the appreciation of
the judge and the purely political choices of the legislator: [Translation] "[The functional standard] is
hard to reconcile with the fact that the legislator has intentionally qualified some institutions as Crownagents that are analogous to those to whom the courts have precisely refused this qualification" {id.:
498). This impasse may only be provisional, to the extent that the so-called "control" standard meets
with equally decisive failure for not taking into account the nature of administrative activities.
63
public purpose can be demonstrated. '^^ Unfortunately, recent developments show that
this distinction is being gradually dropped in favour of a total immunity for all property,
irrespective of its real purpose (see supra, p. 50, the example of California). In Canada,
the principle of "dual domain" also has been adopted in municipal law (Hutchins and
Kenniff, 1971). Yet this distinction should not be overstated. Not only does it not apply
to State property (Brière, 1969: 340; Dussault, 1974: 467), it is evident that it is not
incongruent with the distinction between "purely administrative" and profit-oriented
activities. Everything has its own logic, the former being more concerned with the
domain and the realm of property. Despite these differences, the theory of dual domainis a helpful referent in arguing for a distinction based on the purposes of administrative
activities.
Even more important in the recognition of a functional distinction is the Canadian
Parliament's enactment of the State Immunity Act. Section 5 of this Act states very
simply that:
A foreign state is not immune from the jurisdiction of a court in any proceeding that relates
to any commercial activity of the foreign state.
As Turp notes, this statute [Translation] "meets the requirements of the
contemporary business world" (1982-83: 176). With the expansion of State commercial
activities on the international scene, maintenance of State immunity would be unfair to
private individuals dealing with various State authorities. Throughout the world, it is
[Translation] "these new imperatives which have guided national legislators towards
solutions that tend to restrain sovereign immunity in the area of their commercial
activities and to confine it to its original scope, namely genuine acts of the public
power" {ibid.). In Canada, as in Great Britain'^" and the United States, '^^ property of
foreign States that is involved in commercial activities no longer enjoys immunity from
execution {State Immunity Act, s. 11(1)). Such a growing dichotomy between acts of
imperium and managerial-type acts carried out for profit might usefully be applied in
public domestic law between purely administrative activities and industrial and
commercial activities.
Still preoccupied with whether the immunity of foreign States is relative or
absolute, English-Canadian case-law has not really accepted a purposive distinction in
129. In Louisiana, for example, prior to the 1960 constitutional amendment, "the courts distinguished
proF>erty owned by local entities as falling into either the public or private domain as determined by the
use of the property" (Patrick III, 1977: 983). This purposive conception had the effect of making
immunity from execution relative. "Since it was serving no public purpose, private domain property
was often deemed subject to seizure and sale to satisfy the debts of the local government entity"
{ibid). On the other hand, the public domain was exempt from compulsory execution. For example
"waterworks, courthouses, jails, taxes and school grounds were not subject to seizure since these were
dedicated to public use" {ibid.).
130. State Immunity Act 1978 (U.K.). See Delaume, 1979.
131. The United States Foreign Sovereign Immunities Act of 1976. On this point see von Mehren, 1978.
64
domestic law.i32 A recent decision of the Court of Appeal once again sets Québec apart
from the general trend (Sparling c. Caisse de dépôt et placement du Québec). It adopts,
for the purposes of domestic law, the theory of relative immunity that now reigns in
international law.'^^ Mr. Justice Tyndale indicates that: "There exists a theory to the
effect that when the Sovereign puts aside his crown, so to speak, and descends to
compete in the market place, his special rights, prerogatives and immunities remain
with the crown and he becomes an ordinary subject of the law like his competitors"
(p. 169). He adds that "[t]he doctrine has usually been applied to foreign sovereigns in
international cases and not to the Sovereign or the Crown within the state" {ibid.).
Nevertheless, he concludes (p. 170) that "the doctrine of relative or restrictive
sovereign immunity, according to the weight of authority, [the Court of Appeal cites its
own precedent'^"* and some authors] is now part of our domestic public law. One of the
reasons for the adoption of such relativity [jure imperii versus jure gestionis] was the
expansion of the activities of foreign government agencies and their entry into the
commercial field." '^^
Whatever its future in domestic law, the distinction between the public and the
commercial is becoming more and more accepted internationally. Canada no longer
enjoys immunity from execution in its commercial activities with its trading partners.
Great Britain and the United States. Foreign States that have signed a reciprocity treaty
are bound by the same system in Canadian territory. Given the widespread acceptance
of this distinction, its transposition to domestic law seems inevitable. For reasons of
coherence and simplicity, it would appear to be the solution of the future. Canadian
courts would then be able to apply the same rules to State commercial activities,
whether these are within an international or purely domestic context. A solution of this
type is inevitable, because commercial activities have expanded to such an extent that
their confinement to one State alone is at the very least illusory. And this is particularly
applicable to Canada: the intensity of its commercial relations with the United States,
Japan and the European Economic Community can only encourage such a uniform and
coherent system.
132. La République démocratique du Congo v. Venne remains marked by Mr. Justice Laskin's strong dissent
in favour of relative immunity. See also: Ferranti-Packard Ltd. v. Cushman Rentals Ltd.; Corriveau v.
Republic of Cuba. The Eldorado case may even be interpreted as a rejection of relative immunity.
There, Mr. Justice Dickson observes that:
The more active government becomes in activities that had once been considered the preserve of
private persons, the less easy it is to understand why the Crown need be, or ought to be, in a
position different from the subject. This Court is not, however, entitled to question the basic concept
of Crown inmiunity, for Parliament has unequivocally adopted the premise that the Crown is prima
facie immune. The Court must give effect to the statutory direction that the Crown is not bound
unless it is "mentioned or referred to" in the enactment.
Without referring to the principle of immunity, the Ontario Court of Appeal has already denied the
C.B.C. the right to avail itself of its position as Crown agent on the grounds that the case concerned
conmiercial activities (Baton Broadcasting Ltd. v. C.B.C).
133. The Québec Court of Appeal was the first to reject the theory of absolute immunity for foreign States,
deeming it to be [Translation] "outmoded and unacceptable" (La République démocratique du CongoV. Venne 827 (Q.B.)).
134. La République démocratique du Congo v. Venne; Zodiak International Products Inc. c. Polish People's
Republic.
135. He adds: "In my view, such reasons apply with equal or greater force to the principle of Crownimmunity within Canada, and I would adopt the implication of this Court in Zodiac and give it as myopinion that the Crown is not immune from legislation under Section 16 if its agent is acting jure
gestionis rather \h^n jure imperii (p. 170).
65
For these reasons, we propose that federal authorities, especially the Government
and the Administration, no longer enjoy any immunity from execution for their
industrial and commercial activities. As for administrative activities that are closer to
the traditional conception o/jure imperii (benefit-granting function, planning function,
regulatory function, police and control function, and so forth), immunity should remain
the rule in order to protect the public interest (Garant and Leclerc, 1979: 496).
Although a distinction between administrative and commercial functions is relatively
easy to conceptualize, it is necessary to propose some criteria for making its
application.
2. Criteria for Distinguishing the Public from the Commercial
Assuming a system which draws such distinctions, nevertheless it would be
incorrect to assume that some activities intrinsically fall within the realm of State
(public) actions, while others belong to the private (commercial) sector. This mistaken
assumption, and its concomitant, the "theory of public service by nature" (Vedel and
Delvolvé, 1982: 134) have caused major problems in French administrative law. Points
where the private and public sector overlap are both subtle and complex. Be that as it
may, this overlapping does not impede a better rationale of law and administrative
activities. Far from being a monolith, the State has many dimensions (Friedmann,
1971). Some administrative activities are oriented principally towards profit or industrial
objectives, while others lie within the traditional framework of public service objectives.
Therefore, rather than attempt to ascertain whether a particular activity normally is
undertaken by the public or private sector, it is preferable to identify its industrial or
commercial nature on more functional grounds.
On this point, the State Immunity Act does not provide any helpful definition. It
defines "commercial activity" as "any particular transaction, act or conduct or any
regular course of conduct that by reason of its nature is of a commercial character"
(section 2). Clearly, Parliament has preferred to let courts, who have played an active
role in attempting to confine the scope of immunity to extracommercial activities {acta
gestionis versus acta imperii),^^^ develop the distinctions. The courts should continue to
play a major role in systematizing and clarifying the meaning of industrial and
commercial State activities. Moreover, there is probably no single criterion in this area
for identifying and classifying such activities. Possible indicators include the following.
— Legislative intent: This traditional technique can help identify the nature of the
duties assigned to the Administration. Some caution is in order, because
Parliament often uses expressions that ring of the general interest to cover State
activity based principally on the profit motive. The Petro-Canada Act is a good
example.
— Search for profit: Is the State involved in an activity dominated by financial
considerations? Does it obtain financial gain through mechanisms that are
similar or comparable to those of the private sector? This is the capitalist
function of the State, with purpose or objective (a teleological criterion) being
the test.
136. On the controversy marking the introduction of this distinction, see Kos-Rabcewicz-Zubkowski, 1974;
Simmonds, 1965.
66
— Performance of commercial transactions: Normally, industrial or commercial
services are involved in commercial transactions on a large scale. This is an
important indicator serving to identify activity which is not purely
administrative.
— The purpose of the activities: Do the activities in question represent a service
to the community or are they simply a manifestation of the State's own "private
interests"? Although the postal service is involved in commercial operations
and the search for profit, it cannot be listed among commercial and industrial
activities because it is a service to the community that the State seeks to makemore profitable for reasons of sound administration. On the other hand, the
marketing of fish by public firms, or the operation of a lottery system, might
not initially appear to be services rendered to the community.
This distinction between administrative and commercial is not a panacea, and no
doubt some problems of interpretation will arise. But given existing law, and the
evolution of the modem world, it is the best solution possible, one that is far and away
superior to traditional classifications based on whether the entity has the legal status of
the Crown. Just as the trier of fact must determine whether an entity is a Crown agent,
he should also be allowed to rule on the commercial and industrial activities of the
administration. Only such a distinction can properly contend with the contemporary
State in all of its dimensions. This distinction will be particularly helpful in the
development of a scheme of immunities better suited to the genuine nature of
administrative activities. In Working Paper 40, the Commission implied that private law
might eventually apply to the Administration, if the context were favourable. That is,
once the court has determined that a dispute is of an industrial or commercial nature,
there should be nothing to prevent the application of ordinary execution process to the
federal Administration.
II. Recognizing a Right to Execution
A major part of the problem of immunity from execution is solved simply by the
classification of administrative activities in the manner suggested. For industrial and
commercial activities the Administration will, in principle, be subject to execution
process. On the other hand, for purely administrative activities the problem is
unresolved. Not only would recognition of a right to execution hardly seem compatible
with the nature and purpose of so-called general interest activities, it might also ignore
the fact that such activities are generally governed by special rules of public law. In
both their function and their general scheme, these rules are somewhat removed from
the "normal" realm of private law. This special situation favours development of a
distinct set of rules.
Even though the operations of the Administration are essentially matters of public
law, we must cease to rely solely on public interest arguments to exclude change.
Individuals are entitled to tangible means of ensuring that hard-earned rights are
recognized. The problem then is forcing the Administration to respect res judicata
while not at the same time coercing it with normal means of compulsory execution.
Some new solutions are required if we are to resolve this dilemma.
67
A. Potential Solutions
Negligence and bad faith on the part of the Administration can only be answered
with pressure tactics, whether these be direct or indirect. In the Administration's case,
its privileges, its special status, the weight of tradition, not to mention the inhibitions
of jurists, can easily lead to more indirect means. Of course, this is the traditional
perspective of public law. Concepts such as the "Crown" (Great Britain and Canada),
"sovereign immunity" (United States) or puissance publique (France) seem to exclude
automatically any direct constraint. Unlike in German law (see Eisenberg, 1959),
however, the general principles of our public law do not permit the courts to usurp the
Administration by decreeing the fulfilment of an administrative act or the performance
of certain works. But these principles do not prevent a judge from making an order
against an administrative authority, '^^ subject to any privileges that the latter may be
able to set up. The scope for coercion of public authorities is, therefore, much broader
than is generally imagined.
1 . Indirect Means
Coercive means include injunctive relief, judicial orders, monetary sanctions and
the imposition of penalties. Out of consideration for the Administration's sensitivity,
courtesy may dictate mere incitement or indirect pressure. A narrow construction of
existing law ("no person may give orders to Her Majesty") may also lead to favouring
such forms of recourse. Mechanisms of this type to promote respect of res judicata do
exist.
The mildest form of indirect pressure is undoubtedly public reporting of cases of
failure to comply with judgments. As part of an analysis of various conciliation
techniques Harlow has examined the French use of "Reporting Commissions" (1976:
128). Prior to the 1980 reform, the relatively large number of cases of non-compliance
had already pushed French authorities to resort to stronger safeguards. In 1963, a
Commission du Rapport was set up to make an annual report of cases of inexécution
on behalf of the Conseil d'État. '^'^ This straightforward technique consisted in drawing
public attention to cases of non-compliance, to stimulate criticism of the Administration.
However, the public was generally unaware of this mechanism, and its effectiveness
was debatable (de Baecque, 1982-83: 183); it failed to generate sufficient fear among a
recalcitrant administration. Within the Canadian context, such a "blacklist" would also
be of limited value since it would not give a legally executory remedy. Moreover,
instances of blatant non-execution are so infrequent that publication of such a list would
137. As we have seen, an injunction directed against a Crown agent is henceforth admissible under certain
conditions. See supra, p. 36.
138. Même, 1968; Vedel and Delvolvé, 1982: 728. Pursuant to Decree No. 85-90 of January 24, 1985 (J.D.,
January 25, 1985, 1043), this commission has become the sixth section of the Conseil d'État under the
title [Translation] "Report and Study Section." Its functions are the preparation of an annual report,
the conduct of specialized studies and the settling of problems with execution. This change in status
confirms the importance of the work carried out by the old commission. As Costa (1985) notes:
[Translation] "These three functions ... constitute, for the Conseil, a new activity, one that is original
and modem because it is adapted to problems of operation, and of dysfunctions, of an increasingly
complex administration .'
'
68
not a priori seem to be particularly useful. However, the impact of a reporting system
could be significant, on the lines of the censure of the Administration by the Auditor
General before Parliament. The French Reporting Commission did, in fact, play a very
positive role by accepting numerous applications for clarification or intervention from
the public and even the Administration itself. Many problems were resolved in this
way, without the dispute moving into the forum of public debate {id.: 184). Moreover,
the concept of an independent arbiter suggests other possibilities.
Thus, one might wish to assign the task of reprimanding administrators who refuse
to comply with judicial orders to an independent administrative body. An"Ombudsman "-type solution comes to mind. At first glance, the approach seems
attractive. The Ombudsman reports on situations where individuals have been wronged
by administrative action. His mandate extends beyond purely legal questions, and
includes authority to consider more informally any wrongful or unreasonable acts,
something which is often difficult to control through the courts. Quite positively.
Garant describes this control mechanism as [Translation] "an advice for the lovelorn
column dealing with the often tense marital problems of the Administration-Individual
couple" (1985: 553). There may, therefore, be a greater role for the Ombudsman in
cases of non-compliance. Under existing law, it is a problem that the courts cannot
readily resolve. In Great Britain, "several cases of failure to implement judgments of
administrative tribunals have already been referred to him [the Parliamentary
commissioner]" (Harlow, 1976: 132). In France, the law of December 24, 1976
empowers the Médiateur [Translation] "to request that the entity in question execute
a final court decision" (Vedel and Delvolvé, 1982: 728). But where the Administration
refuses, the Médiateur can only respond by preparing a "special report"!
Even if the general experience with Ombudsmen has been encouraging, it is
nevertheless an uncertain solution to the problems addressed by this study. Why should
a reform in the area of execution be contingent upon creation of this new institution?
Reassessment of immunity from execution should remain an autonomous process, and
ought not to depend on other complementary reforms. In addition, is it really possible
to use the Ombudsman to promote tangible guarantees in the area of execution? In light
of foreign and Canadian experience, the relevance of this type of control seems
questionable. The Ombudsman has neither jurisdictional authority nor a direct material
power to compel the Administration. As Wade notes, "he is in no sense a court of
appeal and he cannot alter or reverse any government decision. His effectiveness
derives entirely from his power to focus public and parliamentary attention upon a
citizen's grievances" (1982: 74). The Ombudsman proceeds essentially by recommen-dations; these cannot be executed (Garant, 1985: 542). It is difficult to imagine how he
can resolve a problem that requires a form of direct constraint in order to force action
or abstention. Furthermore, should not such a power to compel the Administration,
because of its scope and nature, rest with the courts? If the issue is defiance of judicial
orders, should not the courts be given effective remedial powers?
Another conceivable indirect method might be to impose a regime of personal
liability for public servants and administrators. Out of pride, stubbornness, bad faith,
malice or self-interest, a State functionary may defy a judgment or distort its effects by
incomplete or incorrect execution. His attitude may cause harm which is actionable in
tort. However, to grant liability there must be genuine gross negligence, because somecases may result simply from ignorance or carelessness about judicial decisions whosemeaning and scope may have seemed incomprehensible. Although there are few cases
on this subject, English and Canadian courts have long permitted recourse to tort
69
actions against individual administrators. •^^ Indeed, "there is thus a tort which has been
called misfeasance in public office, and which includes malicious abuse of powers,
deliberate maladministration, and perhaps also other unlawful acts causing injury"
(Wade, 1982: 669). Of course the classic case is Roncarelli v. Duplessis, where a
liquor licence was cancelled for illegal grounds, bad faith and abuse of power. Asimilar result could be expected where an administrator's bad faith in refusing to
execute a judgment can be established. The personal liability of administrators is often
thought to be effective in ensuring a minimum of respect for the law and in
guaranteeing a satisfactory level of competence among public servants (Linden, 1973:
162).
Yet this type of recourse cannot be the basis of a satisfactory model. The grounds
of liability alone are a minefield strewn with the countless immunities that benefit
federal public servants as individuals. '"^^ Moreover, proving wrongful behaviour in an
administrative context leads to additional problems, because the administrator's conduct
may well have been dictated by management imperatives and the exercise of
administrative discretion. Furthermore, it is difficult to envisage the personal liability
of Crown agents, given that existing immunity reduces their duty of care to a low level.
Nor is the effectiveness of personal liability at all clear, because such a remedy does
not result in execution of the judgment but simply payment of monetary compensation,
something we can presume would hardly be equivalent to the doing of an act or the
abstaining from doing an act for the individual. Again, since civil servants are not
deep-pocket defendants, no satisfactory compensation can be guaranteed. As for its
appropriateness, widespread recourse to such a remedy would create the impression that
execution is merely a function of the personal will of those concerned, whereas in
reality their attitude is largely conditioned by external factors such as budgetary rules.
Equally, an approach based on personal liability ignores how the Administration
operates. Any important decision involves the participation and agreement of various
levels of the bureaucracy, making individualization of liability highly doubtful. Given
the complex web of services and departments, it is preferable to seek a more direct
means of compulsion whose target is the Administration itself.
2. Direct Means
Even though the wholesale application of execution remedies to the federal
Administration must be ruled out, other recourses remain open. A variety of sanctions
may be deployed to coerce public authorities. But since compulsory execution depends
on compulsion, the use of these sanctions must have a principled justification.
(a) Legitimacy of Compulsion
Initially one confronts theoretical problems. Is indirect coercion less coercive than
compulsory execution? Eventually, a refusal to allow normal execution process will
lead to indirect acceptance of the principle. Yet concepts of constraint and coercion
139. For English law, see particularly McBride, 1979: 324. For the Canadian context see Ouellette, 1975.
140. See Pépin and Ouellette 1982: 521. These immunities have been listed by Dyke and Mockle in
Inventaire général des privilèges et immunités de la Couronne et de iAdministration fédérales contenus
dans les lois fédérales, LRCC, internai document, 1983.
70
may vary considerably. Sanction, fine and imprisonment are coercive remedies that are
not part of the traditional panoply of execution remedies. Clearly, there are two quite
distinct concepts of compulsion. Direct compulsion exists to bring performance of a
specific act. Punitive compulsion, within the context of an omission, provides civil or
penal sanctions for non-performance of an act or non-respect of a duty. Direct
compulsion differs from punitive compulsion, whose basis is repression. Their
underlying principles are not the same, the latter having a repressive function, the
former mandatory purposes.
If remedies such as injunctive relief, seizure, and execution by the court constitute
varying forms of active or mandatory compulsion, civil or penal sanctions are more
closely associated with punitive compulsion. Contempt of court proceedings belong to
the latter category because they sanction an attitude or an omission that impeaches the
authority of a court. These sanctions have a certain attraction because they allow
indirectly what cannot be obtained directly. Even if the main purpose of any sanction is
above all repression, civil and penal sanctions still have a dissuasive aspect. It would,
therefore, be wrong to conceive of them too statically, as little more than the imposition
of a penalty. The concept of sanctions may play an active role without undermining the
fundamental principles that prevent direct compulsion of the Administration. Sanctions
arrive principally after the fact, and because of their scope they go beyond the mere
performance of an act. From the standpoint of execution of judgments against the
Administration, they are of special interest, in light of the problems that would result
from total abolition of immunity from execution.
In principle, it is possible to make the entire federal Administration subject to
sanctions, thereby further attenuating the residual areas of immunity from execution.
An additional advantage of this solution is that it does not overturn fundamental
principles which govern the powers of the courts (see supra, p. 13), and would
therefore appear to respect the Administration's autonomy.
(b) Penal or Civil Sanction!
If this kind of compulsion is accepted, questions remain as to what type of
sanction is appropriate. Reprehensible conduct may be sanctioned in many ways.
Among judicial sanctions, there is a choice to be made between criminal or civil
measures.
Traditionally, the Administration, the Government and the Crown are not subject
to criminal proceedings. As Chitty once pointed out. Her Majesty cannot charge
herself, any more than she can be subject to an arrest warrant or imprisonment (1820:
374). We have already seen that this rule is not absolute, since Crown agents are nowsubject to criminal charges if the acts committed are not part of their duties (see supra,
p. 41). Conceiving that refusal to execute a judgment could be a criminal offence offers
a new perspective.
This type of offence already exists in the form of contempt of court proceedings,
which have an accusatory dimension that is principally criminal in nature (see supra,
p. 39). Bill C-19, tabled in the spring of 1984, treated this sanction as a criminal
offence. In the first chapter of this work, however, we ruled out the idea of using
contempt of court proceedings against the Crown. Failing a radical change in the
constitutional status of the courts and the Crown, it is hard to imagine Her Majesty
71
being in contempt of herself under existing law. It would probably be unconstitutional,
and require a fundamental revision of the basics of Canadian public law. Because of its
parameters, this study cannot consider such profound modifications.
Even if contempt proceedings were permitted, their very nature would generate
new problems. Created to deal with cases of "contempt in procedure," contempt is
directed above all at individuals, because it relies on physical restraint. Even if such
means were eventually applicable to corporate entities (company personnel, for
example), this type of coercion is not adapted to the special context of public
authorities.
Refusal to execute a judgment might also be enacted as an ordinary criminal
offence. However, this course of action should also be rejected. Criminalization would
not reflect the real nature of the problem. Since in administrative law cases of refusal
to execute arise in civil proceedings or in administrative proceedings (administrative
tribunals), the appropriate sanction for such problems should be civil in nature. Asimple technique, in the form of a collateral proceeding, would be required.
Consequently, our approach should be towards a basically civil sanction. But
between ordinary means of compulsory execution and contempt of court, is there a
compromise solution that respects both the special nature of the State and the need for
tangible safeguards for the individual? It is here that the French institution of astreinte
is attractive.'"^' By subjecting the Administration to financial sanctions for non-
compliance with a judgment, the judge would be respecting both the authorities'
freedom of decision making and the integrity of State property. In return, such a
mechanism would offer the individual an effective recourse which the Administration
could not long resist. It is therefore appropriate to conceive of a new technique that
would also be based on financial pressure.
B. Strategies for Reform
Fundamentally, the proposed reform would be based on reconciling the various
interests involved. On the one hand, an overiy absolute recognition of the superiority
of the interests of the State over those of the individual would be abusive; on the other,
it would be going too far to claim that all rights must be vested in the individual. Aswe have already suggested, immunity from execution must be maintained in the case
of purely administrative activities. Generally, the latter consist of essential services
which cannot be disrupted to satisfy the interests of a single individual. Its theoretical
underpinning is no longer a form of State positivism (the State, the State-in-itself), but
rather the interests of the community. Conversely, the individual is entitled to execution
of a judgment, even where the debtor is the State.
1 . The Search for Effective Execution Remedies
Effective execution does not necessarily imply resort to direct force. It is simply a
matter of encouraging full compliance with judgments. It should not be forgotten that
the whole issue of non-execution is a complicated one. The Administration has subtle
141. See supra, p. 52.
72
means available to it in order to avoid the effects of a judgment. Rather than adopt
repressive measures that would deal with all possible forms of non-compliance, it
would be preferable first to establish a legal obligation upon the Government and the
entire federal Administration to respect judgments rendered. Similarly, some boldness
might be shown in specifying that this duty should not deprive execution creditors of
any rights acquired through judgment. Such provisions would amount to a statement of
principle and as such would provide a tangible basis for effective execution.
In the case of money judgments, minor amendments are in order. The current
discretion of the Minister of Finance whether to pay such judgments should be
abolished. '"^2 Money judgments should be payable by force of law, making resort to
compulsory execution redundant. However, in cases where very large sums are
awarded, public finances should not be destabilized by sudden outflows of funds,
especially in the case of independent administrative agencies and public enterprises
which manage their own budgets. To cope with this danger, the California system gives
the authorities the possibility of making installment payments. This innovation
specifically contemplates the situation of "local entities," whose financial health is far
more precarious than that of the State of California. To this effect, the California LawRevision Commission recommends that: "A local public entity is now required by
statute to pay a tort or inverse condemnation judgment and may pay the judgment in
not exceeding ten annual installments where necessary to avoid unreasonable hardship"
(California, 1980: 1263).
As we frequently hear in the news of lawsuits in the millions of dollars taken
against federal authorities,*"^^ it would be quite appropriate to enable them to soften the
impact of a heavy condemnation. Because the State's responsibilities are different from
those of private individuals, and because it manages public funds, this relatively minor
privilege would seem suited to the special nature of its functions. More simply, the
payment of certain judgments should not put public finances into a precarious position.
This reservation means that the possibility of installment payments should not dependon the judgment creditor's agreement (id.: 1264). Private individuals should not
determine how public funds are to be used. The option to proceed by installment
payments over a period not to exceed five years, should be left to the discretion of
federal authorities.
As for mandatory or prohibitive judgments, alternatives have already been
proposed in this chapter. Under private law, the recalcitrant debtor is exposed to
execution process. Nothing of the sort exists for an important part of the federal
142. Provided for by: Crown Liability Act, s. 17(2); and by Federal Court General Rules, Rule 1800.
143. As a recent example, the Federal Court (Appeal Division) awarded $650,000 to two private companies
that originally claimed $2,520,000 for loss of profits and $3,400,000 for loss of equity following the
breaking of an agreement by the federal authorities: R. v. CAE Industries Ltd. At trial, they had
succeeded in obtaining a judgment for $4,300,000! As another example, the 1983 Canadian public
accounts indicate a payment of $2,600,000 by the Treasury Board as an out-of-court settlement for the
victims (grouped in trust) of the crash of a Boeing 737 at Cranbrook Airport in February 1978 (34.13).
Internal compilations made between 1971 and 1983 for the central Administration alone show that
monetary condemnations against the federal authorities are particularly important in the following
sectors: Transport, National Defence, Office of the Solicitor General. For 1983, these three areas
accounted for condemnations whose totals were $3,038,000, $3,207,000 and $1,533,000 respectively.
If we attempt to calculate everything the federal State pays each year in damages, on behalf of both the
central Administration and autonomous entities and public companies, we are talking about several
dozen million dollars. For 1983 alone, payments made to cover damage caused by the central
Administration amounted to $18,848,000.
73
Administration, which enjoys total immunity by its association with the legal status of
the Crown. The gradual erosion of this artificial scheme has tended to show that it is
barely justifiable for a part of the Administration. Maintaining this privilege is
unwarranted where administrative activities are industrial or commercial in character.
Moreover, these should be subject to ordinary execution process not only where there
is non-compliance with a judgment, but also in the normal course of proceedings which
includes detention and other measures of preservation. Of course some exceptions
might be in order, specifically with respect to property held by the State for military
purposes.
The special nature of "purely administrative" activities makes extension of
ordinary private law rules difficult. Existing immunity for these services should be
maintained, but the immunity rule should be redrafted in completely new terms. For
reasons that have already been set out in Working Paper 40 (Canada, LRCC, 1985:
31), it should no longer be the Crown that enjoys this immunity, but rather its real
beneficiaries, the Government and the Administration.
With this proposal to preserve immunity from execution for so-called "purely
administrative" action, we are taking into consideration imperatives inherent in the
carrying out of certain public responsibilities which are essential to both the
Administration and the public. However, these imperatives should not stand in the wayof a bold new approach. Rather than recreate an absolute immunity. Parliament should
enact only a relative immunity. If immunity from execution for "purely administrative"
action were restated in rigid and unequivocal terms, there would be a danger that
immunity would far too often remain the rule for most State activities, even industrial
and commercial ones. It should not be forgotten that these two dimensions, commercial
and public, are often closely bound together, and occasionally this makes distinctions
based on the nature of administrative activities very delicate. For this distinction
between the commercial and the administrative to result in significant change, a more
fundamental reform must be considered. To ensure that reform brings tangible results,
the principle of immunity ought to be turned around by making immunity a relative
concept. Even if immunity will still exist in principle, why not recognize the
administrés' definite right to execution, thus presenting the issue in a positive way? All
State property should be subject to compulsory execution, with two restrictions (with
such an approach, immunity from execution is no longer an absolute principle but
becomes instead a contingent, relative rule):
(1) Some exceptions might be expressly enumerated by statute.
(2) Where compulsory execution takes place, the authorities would be able to file
an exception in court which, for lack of a better term, could be called the
"public service exception." This option would only be available to the creditor
after a judgment is rendered, immunity from execution remaining the rule
during the course of the proceedings.
This second point needs elaboration. Quite simply, some objective criteria whose scope
and application would be left to the court, should govern invocation of the exception.
Often, everything depends on specifics, requiring an examination of the real situation.
When a judgment is violated, State property would be liable to ordinary execution
process, unless the administrative authorities against whom judgment has been rendered
demonstrate to the court's satisfaction that the property in question is essential to the
organization and operation of the "public services." Immunity for purely administrative
74
activities would thus become relative. '"^ Where industrial and commercial activities are
involved, a simple identification of the nature of the activity in question would be
sufficient to legitimate compulsory execution. In all cases, however, compulsory
execution would not be allowed without leave from the court. In the case of non-
compliance with a decision handed down by a quasi-judicial body (an administrative
tribunal), the power to decide whether or not compulsory execution is necessary should
rest with the Federal Court. "^^
In this proposal, the traditional immunity of the Crown would disappear in favour
of new rules for the federal Administration as a whole. Exposure to compulsory
execution would depend on the nature of administrative action. However, this would
not allow execution process to issue indiscriminately against any service, department or
entity at the federal level. Only the administrative entity that has been the subject of
the judgment should be liable to execution process. Such a restriction is needed to
avoid, for example, a situation where a creditor seizes Agriculture Canada property
used in industrial and commercial activities, when the recalcitrant judgment debtor is
really another department. Supply and Services Canada. In the scheme proposed, only
the property of Supply and Services Canada would be potentially subject to compulsory
execution (on condition, of course, that Supply and Services Canada was not engaged
in "purely administrative" action).
This proposal creates a subsidiary problem. Although most independent
administrative agencies and public enterprises have their own legal personality despite
the fact they are also Crown agents, the same is not true with the central Administration.
Under existing law they have no legal personality distinct from the Crown, and the
Attorney General of Canada often acts in their name before the courts. Sometimes it is
the Minister responsible per se who is being pursued; this question of the absence of
legal personality can be evaded to the benefit of the status of Minister of the Crown.
This helps explain the problem with introducing a reform based on functional and
substantive criteria (the nature of administrative action). Yet the problem could be
overcome, were the statute to specify that only entities or departments involved in a
dispute could be subject to compulsory execution. ^^^^ Provided a reservation of this type
is clear and express, there is no reason it could not be incorporated into a special
scheme of public law.
The need to grant judgment creditors the right to effective execution invites
compromise. The French reform of 1980 provides a good model. While preserving an
immunity identical to the present Crown immunity, this reform allows the Conseil
d'État to compel the Administration, using financial sanctions, in cases of non-
compliance. It is appealing to endow the Canadian courts with an analogous power.
While the amount of the sanction should be fairly high to make it effective, the court
should be permitted to consider mitigating circumstances and reduce the amount of the
144. As Belgian writers have pointed out: [Translation] "Debate is an ideal way to bring out patrimonial,
budgetary, financial and functional elements which are to be considered in determining whether or not
such execution is admissible" (Le Brun and Déom, 1983: 270).
145. In 1980, the Law Reform Commission of Canada made clear its position that only the Federal Court
should be responsible for all judicial reviews of federal administrative authorities (1980: 44).
146. Similarly Garant notes that: [Translation] "Execution of judicial decisions [condemnation to do or
not to do] would be greatly facilitated by the designation of an administrative body or statutory
corporation against whom such judgments would be pronounced" (1985a: 954).
75
condemnation at the time of final judgment. This new mechanism of financial pressure
would in no way be a substitute for genuine execution pursuant to the terms of the
main judgment. It would only be a way of pressuring the debtor to execute the
judgment with the threat of an expensive financial sanction. This dissuasive element is
very important, because statistics from the French Administration show that astreinte is
only rarely used. What is important above all is its role in the case of non-
compliance. ^'^^ Were such a mechanism created, there would be two judgments. Thefirst, a provisional one, would simply establish the amount of the sanction, to be
computed daily from a date fixed by the judge. The second, a final one, would be
payable by right according to conditions applicable to money judgments, and wouldestablish the definitive amount of the sanction, while at the same time taking into
account circumstances surrounding the delay in execution. As this monetary sanction is
not a fine, it would not be remitted to the State, an absurd result in any case; rather, it
could be forwarded for example to a fund for scientific or legal research. Finally, as
the sanction is not a judgment for damages, nothing would prevent a further action for
damages resulting from non-compliance.
The proposed reform is aimed at reconciling the interests of all parties concerned,
as much as this is possible, while at the same time avoiding any major upheaval in the
fundamental principles of public law.
2. The Special Case of Compensation (Set-Offs)
From a public law perspective, even if compensation is not a part of all
compulsory execution actions, it remains closely linked to the rules governing immunity
from execution, especially in terms of its underlying rationale and practical implications.
In an overall re-evaluation of immunity from execution, the fate to which we should
consign this notion of compensation ought to be considered.
Compensation for set-offs is a private law notion whose effect is to permit two
debts to cancel each other. Although it is basically the same under civil law and
common law, its scope differs in the two legal systems. The civil law of obligations
places compensation among the various ways of extinguishing obligations — articles
1187 to 1197 of the Civil Code (Baudouin, 1983: 495). Two parties who are mutually
creditor and debtor of each other may in this way settle their reciprocal debts. Nomeeting of minds is required, because compensation takes place simply by effect of the
law.'"^^ Compensation may take place under civil law without there necessarily being
any ongoing litigation. This is not true in the common law. At common law, "set-off"
is a defence or "cross-claim" and occurs within the context of a lawsuit. EngUsh law
147. [Translation] "In several cases, a solution was found during the proceedings which brought the
plaintiff to desist in his action and we may consider that this rapid and favourable result is due to the
pressure brought by the individual's claim to have the Administration condemned to an astreinte'' (de
Baecque, 1982-83: 192).
148. Article 1188 of the Civil Code provides that:
Compensation takes place by the sole operation of law between debts which are equally liquidated
and demandable and have each for object a sum of money or a certain quantity of indeterminate
things of the same kind and quality.
So soon as the debts exist simultaneously they are mutually extinguished in so far as their respective
amounts correspond.
76
distinguishes between "set-off" and "counterclaim" {Halsbury, 1983, Vol. 42: 239
ff.). "Set-off" is limited to monetary compensation (the same restrictive meaning as in
civil law) whereas "counterclaim," as its name indicates, allows defendant B to answer
plaintiff A with any lawsuit or claim he may have against A in the civil law; the cross-
demand or demande reconventionnelle has a more limited scope because it requires a
claim resulting from the same source as the principal suit {id.: 241).
Within the context of relations between the Administration and the individual, this
mechanism could provide attractive extrajudicial safeguards (Canada, LRCC, 1985:
77). Under existing law, it is not open to private individuals because the Crown enjoys
total immunity against any claim for a common law set-off. Under civil law things are
not so clear. '"^^ Compensation may be a mode of extinguishing debts, but it is also an
indirect method of compulsory execution, above all from a public law standpoint. This
reasoning is used to justify non-application of compensation to the Crown. Décary
notes that "since as a matter of law no execution shall issue on a judgment against the
Crown, a claim against the Crown is never demandable and thus is not amenable to
compensation, since compensation presumes two debts that are liquidated and
demandable" (1976: 321). Compensation necessarily involves execution, because if Ainvokes it he may lead B to execute his obligation. Within this meaning, compensation
takes the form of an indirect means of execution. Indeed, B may be forced to fulfil his
obligation at a time and under circumstances which are far from favourable to him. In
this way, the Crown could be compelled to execute against its will; hence, the link
with compulsory execution.
Crown immunity from compensation or set-off is also based on textual arguments.
As no federal statute subjects it to this mechanism (Décary, 1976: 323; Dyke and
Mockle, 1983), we are left with the traditional immunity of common law. Failing an
express provision to the contrary, immunity remains the rule. Some decisions have
clearly confirmed this privileged status {Morley v. Ministre du Revenu national, Fortier
V. Langelier). Immunity may be absolute in scope with respect to the federal Crown,
especially considering that Crown Proceedings Acts in Great Britain and the English-
Canadian provinces have already settled the matter with express provisions. In general,
this legislation has somewhat relaxed the rule of Crown immunity. '^^ But it still applies
in respect of every claim for compensation in fiscal and criminal matters. '5' Conversely,
149. Pursuant to sections 94 to 100 of the Code of Civil Procedure, nothing expressly reserves the rights of
the Crown in this area. Should we deduce that section 94 applies in the absence of contrary provisions?
It states that:
Any person having a claim to exercise against the Crown, whether it be a revendication of moveable
or immoveable property, or a claim for the payment of moneys on an alleged contract, or for
damages, or otherwise, may exercise it in the same manner as if it were a claim against a person
offull age and capacity, subject only to the provisions of this chapter. [Emphasis added]
This doubt is also justified because compensation is not a right that is essentially litigious.
150. See, for example, subsections 17(5) and (6) of the Saskatchewan statute, and subsections 19 (1) and (2)
of the Alberta statute.
151. As shown by the New Brunswick Proceedings Against the Crown Act, s. 14(5).
No person may avail himself of any set-off or counterclaim in proceedings by the Crown for the
recovery of taxes, duties, or penalties, or avail himself, in proceedings of any other nature by the
Crown, of any set-off or counterclaim arising out of a right or claim to repayment in respect of any
taxes, duties or penalties.
77
the federal Crown has been granted this right, at the expense of the individual, by
several federal statutes (for example. Excise Tax Act, s. 52(9), Canadian Forces
Superannuation Act, s. 7(8), and Unemployment Insurance Act, 1971, s. 48).
The appropriateness of these Administration and Crown privileges must, therefore,
be questioned. The legal and practical reasons usually raised in their defence are far
from convincing. On the legal level, it is difficult to imagine how compensation
undermines the principle of immunity from execution. All provincial statutes allow
exceptions that benefit the individual yet maintain immunity from execution. ^^^ This is
hardly surprising, because compensation is, above all, a form of double payment
serving to facilitate particular commercial and banking transactions (Baudouin, 1983:
495). It is difficult to argue that a mechanism for settling debts is a type of compulsory
execution.
However, from a practical standpoint, the rule is justified by potential
administrative problems. As Décary points out, "an administration would be
embarrassed if compensation were permitted with respect to claims attaching to
different departments" (1976: 328). Yet this does not seem to bother the authorities
when money must be recovered from individuals, as subsection 39(6) of the CanadaPension Plan reveals:
Instead of making a refund that might otherwise be made under this section, the Minister
may, where the person to whom the refund is payable is liable to pay tax under the Income
Tax Act, apply the amount of the refund to that liability and notify such person of his
action.
Given increased centralization, mechanization and computerization of the federal
Administration, administrative arguments are not convincing. Any individual should be
able to claim compensation against the entire federal Administration, even if the debts
do not involve the same administrative entity. To give a concrete example, a person
ordered by the courts to remit a sum of money to Agriculture Canada may invoke the
right to compensation for the income tax rebate he is expecting from Revenue Canada
Taxation. In this specific case. Agriculture Canada would be obliged to communicate
with Revenue Canada to make the appropriate adjustments. Since all funds, both
revenue and expenses, are currently transferred between federal departments and
agencies, it seems that this suggestion would not disrupt budgetary rules. Nonetheless,
feasibility studies should be undertaken to ascertain the viability of this reform. Since
there are no legal obstacles to amending the Administration's privileged status, future
studies done by accountants and actuaries may well be most enlightening on this issue.
Several secondary questions restricted to matters of law are still unresolved. The
first arises with respect to the type of debt which may be compensated. Within the
perspective of reinforcing the right to compensation, should all obligations be covered
by this right, even those resulting from taxes or fines? On this point, private law does
make some exceptions (for example, article 1 190 of the Civil Code). A more technical
152. Set-off is allowed if the two claims relate to the same department or entity, as subsection 14(6) of the
New Brunswick statute shows:
No person may, without leave of the court, avail himself of any set-off or counterclaim in
proceedings by the Crown unless the subject matter of either the set-off or counterclaim relates to a
matter under the administration of the same minister or Crown corporation as the matter with respect
to which the proceedings are brought by the Crown.
78
problem may result where there are multiple debts. Should an order of priorities be
considered? Again, should public authorities be able to pay the debt in installments?
With respect to total compensation, this particular right is no longer relevant because
both debts are deemed to merge and cancel each other. For the balance that has not
been compensated, one should reluctantly permit public authorities to pay by
installment, under the conditions and for the reasons noted earlier, since such a
possibility is not generally available for the State's debts. In the special context of
money judgments, this ability to pay by installment is justifiable as a way of avoiding
significant and unpredictable disbursements from the funds of an independent
administrative agency or a public enterprise. At the present we are not prepared to
specify any particular method of paying compensation, nor do we wish to restrict it to
a definitive list of requirements and obligations even if this may possibly exclude taxes
and fines.
Of all these questions, the most important remains the scope to be given to this
new safeguard. Should it be permitted only as a litigation plea (the common law
approach) or should it be available to unlitigated debts by simple effect of the law
where both debts are demandable (the civil law approach)? In Working Paper 40 the
Commission indicated a preference for safeguards that would also cover unlitigated
debts, referring to the fact that non-curial relations between the Administration and the
individual are the rule and litigation the exception. Indeed, compensation is an area
that is well suited to the creation of non-curial procedures. In order to strengthen
significantly the administrés' position, the establishment of a positive entitlement to
compensation for debts that are due would be worthwhile. As a general principle, all
debts between the Administration and the individual should be subject to compensation
by simple effect of the law, except as expressly provided for by statute. This right to
compensation would be valid against the entire federal Administration, with all
reference to the Crown excluded for the same reasons as those- explained previously.
For social reasons, such a right should apply only to physical persons since the purpose
here is to improve and democratize relations between the State and individuals. Finally,
debts should be subject to compensation even where they originate from Government
authorities with distinct legal personalities. In such a case, the two departments
involved would have to make the necessary arrangements for the reimbursement of the
funds disbursed in compensation.
Conclusion to Chapter Two
With a few rare exceptions. Western countries have barely modified their public
law in the area of execution. This situation is in clear contrast to public international
law, where a distinction between management activities and State activities proper (jus
gestionis versus jus imperii) has become quite generalized. The distinction renders the
old immunity to process that was systematically invoked by foreign States against the
courts of another country more relative, and exposes property used for commercial
purposes to execution process. It now applies in Canada by virtue of the State Immunity
Act.
The same type of distinction should be introduced in domestic law, because recent
decades have been marked by a considerable increase in industrial and commercial
activities of the Administration. It is hard to continue justifying the traditional Crown
79
immunity for the Government and the Administration with respect to this class of
activities. Yet when these activities represent genuine State functions in which the
objectives of public policy and the general interest are present, existing immunity
should be maintained, although it should be restated in new terms. The concept of the
Crown is no longer of any use in distinguishing between the administrative and the
commercial.
This partial maintenance of traditional immunity should be relaxed somewhat by
granting additional remedies to judgment creditors. Administrative authorities should be
subject to financial sanctions when they defy or only partially comply with a judgment.
Distinct from damages, the only purpose of these judge-ordained sanctions would be to
compel the Administration to comply with the original decision. They would constitute
a financial penalty (a civil, not a penal one) that the judge could set as he saw fit. This
approach enables the importance and the purpose of administrative action to be
reconciled with the imperatives of the proper operation of the judicial system.
80
General Conclusion and Recommendations
At first sight, immunity from execution would seem immune from reform.
Although this immunity is at present linked to the Crown, its rationale depends mainly
on the special nature of the State, the Government and the Administration. Because
historical reference to the Monarch as an individual is no longer very useful, arguments
in defence of immunity now tend to be grounded in legal positivism. Relying on the
apparently special nature of the State, some jurists have adopted absolutist justifications
which cut short prospects for reform. Some consider it unthinkable that public force
could be used against the authority which is its very source, while others consider the
possibility of execution against the State to be a serious encroachment on the principle
of separation of powers. Still others feel that State sovereignty would be compromised,
and that the orderly management of public finances would be undermined. To give
these arguments currency, reference is made to the general interest and proper operation
of the Administration. Finally, some even invoke the dignity of the State, the
functioning of the Administration, the need for mutual respect between the courts and
the Administration, judicial self-restraint, appropriateness, and even bureaucratic
sensitivities in support of immunity. From neo-positivism to pure pragmatism, by wayof various views of the State and of judicial control, the resulting situation is hardly
favourable to reform. Therefore, it comes as no surprise that immunity from execution
has remained the rule in most Western countries.
By contrast, public international law appears to have taken a decisive turn marked
by the suppression of immunity from execution with respect to State activities of a
commercial nature. By distinguishing between gestio and imperium, a dualist view of
State activities has made a previously too absolute privilege merely relative. Domestic
law, on the other hand, has largely opted for organic and formal standards, to the
detriment of a more functional approach. Consequently, the prevailing trend in English-
speaking countries has been to avoid distinguishing types of administrative action. Howcould it have been otherwise, since the notion of the Crown has always been
predominant? Because all State functions are in some way or another associated with
the Crown, it is difficult to introduce a new distinction based on the nature of State
activities. In this respect, the present study confirms one of the major orientations of
Working Paper 40. Therefore, in proposing standards that are fully adapted to the real
nature of administrative action, any reference to the concept of the Crown must be
dropped. Present immunity must be reassessed and restated in terms that do not refer
to the concept of the Crown. Any attempt to modernize this area of administrative law
requires a direct evaluation of administrative action and a clear and explicit designation
of the real beneficiaries of existing immunity, namely the Government and the
Administration. In Working Paper 40, the Commission clearly stated its resolve to
undertake the decisive step of defining a new legal status for the federal Administration.
The crucial point is whether the federal Administration can still invoke an immunity
formerly attributed to the Crown. The focus now has changed, and only the activities
of the Administration should be at issue.
81
In order to propose substantial modifications, any legislative provisions which
serve as a basis for immunity from execution would first have to be repealed. Morespecifically, these are section 6 and subsection 17(1) of the Crown Liability Act,
subsection 56(5) of the Federal Court Act and section 18 of the Garnishment,
Attachment and Pension Diversion Act. These provisions should be replaced by a newseries of enactments. The easiest solution would be to group them with a view to the
introduction of a new statute on the legal status of the federal Administration. This
proposal is a part of the work which the Commission is carrying on with a view to
elaborating a new legal status for the federal Administration. As such, it remains
inseparable from the overall approach.
Content of the Reform
Although non-compliance with judgments by Canadian public authorities is still a
relatively rare occurrence, this does not obviate the need for reform. Given existing
law, there are two specific reasons for this.
The first results from an elementary concern with modernization. Rather than take
for granted the propriety of the authorities, it is important to question the very relevance
of immunity from execution. As handed down by tradition this immunity no longer
reflects contemporary legal preoccupations and is ill-adapted to the commercial nature
of some administrative action. The overly general nature of this immunity should be
corrected. When the State becomes involved in industrial or commercial activities for
lucrative purposes, traditional arguments in favour of immunity from execution no
longer apply. Because this commercial dimension is obviously not synonymous with
public order, the general interest or the special nature of the State, nothing would seem
to stand in the way of liberalizing the existing scheme of immunity. In some way, this
amounts to a recognition of the multidimensional nature of State activities.
The second reason relates to the concept of safeguards. Alongside a concern with
adaptation to administrative action is a desire to provide the judgment creditor with
effective remedies to ensure the execution of judgments. In this area, existing law
leaves many questions unanswered. An important part of the federal Administration
may indeed refuse to comply with judicial decisions without there being any genuinely
effective way to respond. Here is a source of potential abuse: [Translation] "Thevery idea that the Administration may ignore res judicata with impunity amounts to
questioning the most fundamental principles of liberalism" (Distel, 1980: 71). We must
stop being naive about the effectiveness of judicial and parliamentary control. It is time
to recognize the validity of specific safeguards for the public.
From the standpoint of an overall reassessment of the legal status of the federal
Administration, this shortcoming in administrative law should be corrected. Far from
succumbing to a romantic vision of judicial review, the approach proposed by this
document is based on the principle that such control should be a tangible reality capable
of bringing about concrete results. Compliance with court judgments is a categorical
imperative that can only be attained by providing the individual with effective
safeguards. These must go beyond merely Platonic censure by the courts. As Sir
Edward Coke suggests in Franklin's Case, "when the law gives anything to anyone, it
gives also those things without which the thing itself would be unavailable" (p. 47a).
In this vein, outdated myths according to which, as Thiers put it, [Translation] "the
82
State must always be deemed solvent and an honest man" must be eschewed. Rather,
situations in which the State, ordinarily a good debtor, may for economic or political
reasons be tempted to ignore a judgment must be anticipated.
To reach this end, the proposed reform must attempt to reconcile the legitimate
interests of the individual with those of the Administration and the Government. To be
effective, our various suggestions should lead to a new statute'" comprising the
following provisions.
(a) Recognition of the Authority of Judicial Decisions
By virtue of Crown privileges and immunities, the federal Government and a large
part of the federal Administration enjoy a special status with respect to compulsory
execution. This situation abets public authorities who deploy refined techniques to
avoid the consequences of a judgment. Therefore, the authority of judicial decisions
should be unequivocally recognized, not only to eliminate potential dangers of abuse,
but also to offer a minimal legal basis for a successful response to certain
Administration tactics. This reform is obviously no panacea. By imposing a positive
duty on the authorities, however, it does provide a safeguard that should not be taken
lightly. This provision is so important that we intend to propose a system in which
immunity from execution will be maintained for an important part of administrative
and governmental activities.
Section 1: The Government and the Administration shall comply with judicial
decisions.
Where there is either outright refusal or incomplete execution, such a provision
would provide a minimal legal basis for an action in damages. The courts should have
authority to evaluate, on the facts of each case, what constitutes proper execution.
(b) Automatic Payment of Money Judgments
Under existing law it is difficult to determine whether the Minister of Finance has
any real discretion with regard to the payment of money judgments. There is no reason
why all money judgments should not be payable by the Minister of Finance upon
demand. However, we do not wish to create problems in the area ofpublic funds , moreprecisely for the balancing of the budgets of independent administrative agencies andpublic enterprises. If this imposes unacceptable financial consequences, public
authorities should be entitled to make installment payments. Subsection 17(2) of the
Crown Liability Act should therefore be repealed and replaced by a new provision.
Section 2: In a final judgment, any award of money made against the
Government or the Administration is payable as of right upon presentation of
a certificate of the court to the Minister of Finance.
For judgments greater than X (amount to be determined), the Minister of
Finance may make payments by installment over a period not to exceed five
years.
153. This is required because of the rule by which privileges and immunities of the Crown cannot be
amended except by express legislative provision.
83
(c) Liberalization of Immunity from Execution
Until now, there has never been any question that administrative authorities
associated with the Crown benefit from immunity to any form of compulsory execution.
The recent adoption of the Garnishment, Attachment and Pension Diversion Act has
reduced somewhat the broad scope of this immunity. As for the federal Administration
that is not assimilated to the Crown, all ordinary means of compulsory execution are
admissible as in litigation between private individuals.
This distinction leads to a largely incoherent result because immunity from
execution does not depend on the nature of administrative action. A variety of Crownagents may successfully claim this immunity, even when they are engaged in industrial
and commercial activities. Yet other authorities have no immunity, even when they
provide essential services to the public. This situation should be rectified by the
adoption of new standards that can reflect the true nature of administrative and
governmental action. A substantial change is required because immunity from execution
developed when State activities were very confined and strictly public in nature (this
was the limited context of the État-gendarme). At the present time, the diversification
of State activity fully justifies modifying the law on the basis of a differential treatment
for different administrative functions.
The 1982 State Immunity Act introduced a type of relative immunity for foreign
States based on the nature of their activities. Consequently, they no longer have any
immunity for commercial activities (sections 5 and 11). This approach deserves to be
extended to domestic law. Where the State acts as a businessman, it should be treated
as one. Therefore, a decisive step should be taken by allowing normal execution
process with respect to administrative action of an industrial or commercial nature.
On the other hand, with respect to other administrative action, which we consider
to be "purely administrative" because it traditionally falls within the purview of the
State (administrative police function, benefit-granting function, regulatory function, and
so forth), immunity from execution is more easily justified. In these areas, concepts of
public order and community service are intimately interrelated. For example, items
used for military purposes should normally be immune from compulsory execution in
the legitimate interests of national defence. This example is only one of many.
However, these services are not so significant as to preclude all reform. Rather
than the use of absolute terms to create an immunity for all so-called "purely
administrative" activities, the scope and ambit of the immunity should be made more
relative. If immunity from execution with respect to such activities were to be restated
in rigid and absolute terms, immunity might too often remain the rule for most State
activities, even those of an industrial or commercial nature. We should not lose sight
of the close interrelationship between these two dimensions, commercial and public,
making distinctions based on the nature of administrative action often quite difficult.
In order that the distinction between the commercial and the administrative actually
lead to reform, it would be better to make immunity from execution more relative. Even
though in principle this immunity would still exist, it would be useful to grant the
administrés a definite right to execution, which would allow a more positive approach
to the issue. Immunity from execution must cease to be an absolute immunity and
become a relative one. In order to reverse the traditional approach, all State property
(subject to certain express exceptions) would be exposed to compulsory execution.
84
unless the Government or the administrative authority contemplated by the judgment
can demonstrate, to the court's satisfaction, that the property in question is essential
to the organization and operation of the public service. By adopting this approach,
some "mixed" activities (administrative and commercial) as well as those that are
purely administrative may be subject to compulsory execution process if their property
is not essential to the operation of public services. On the other hand, immunity should
normally remain the rule for activities of a clearly public and social dimension (service
to the community) for which any interruption in the continuity of public services would
be unacceptable. Another important condition is that this option of resorting to
compulsory execution against the Administration would only be available to the creditor
for the execution of a final judgment, while immunity from execution would remain the
rule during the course of the proceeding. In the case of non-compliance with a decision
handed down by a quasi-judicial body (an administrative tribunal), the power to decide
whether or not compulsory execution is necessary should rest with the Federal Court.
The recognition of these exceptions fits within the general logic governing rules of
compulsory execution. In private law, many items are declared exempt from seizure
because of their social and economic importance. By analogy with privileges granted
to individuals, the federal Administration should also enjoy total immunity in areas
where the social and public purpose of its activities is paramount. Furthermore, this
immunity may be enhanced with an express listing of public property declared exempt
from seizure. Based on the submissions that it expects to receive, the Commission mayat some point prepare such a list in subsequent research.
Except for items declared exempt from seizure, any judgment against the
Government or the Administration should eventually give rise to execution against the
property of the authority contemplated by the judgment. We clearly say "eventually"
because the creditor will have no immediate right to execution. He will be required to
give notice to the authority concerned, as well as to the Minister of Justice, who maythen contest by invoking the imperatives of proper operation of the public service. In
contested cases, there would obviously be no compulsory execution against State
property without leave of the court.
To prevent the right to execution from leading to undesirable results, restrictions
must be set out concerning the administrative authorities exposed to execution process.
Following a judgment, execution remedies should not be directed indiscriminately
against any service, department or entity. Only the administrative entity contemplated
by the judgment should be liable to compulsory execution. Even if existing law does
not recognize a distinct legal personality for various parts of the federal Administration
(in particular, departments), a reservation to this effect could easily be introduced.
Section 3: Any judgment against the Government or the Administration maybe executed upon the property of the authority contemplated by the judgment.
No later than thirty days prior to any such execution, the creditor must give
notice to the authority concerned as well as to the Minister of Justice, whomay contest it by motion, within fifteen days, by satisfying the judge of the
danger of disruption to pubHc services. To this end, it must be shown that
property liable to execution is essential to the organization and operation of
services offered in the public interest or necessary for the maintenance of
public order.
To clarify the above general statement, no compulsory execution process maybe authorized during the proceedings.
85
Section 4: The Government and the Administration shall have no immunityfrom execution in actions or suits dealing with their industrial or commercialactivities.
Section 5:
(a) Property used or destined for use in the context of military activity, and(b) Property used for the functions of the Senate and the House of Commons,
are not subject to seizure.
(These two examples are merely hypotheses that we do not propose to defend.
At this stage, it is not necessary to provide an extensive enumeration.)
These provisions distinguish between administrative activities, on the one hand,
and industrial and commercial activities, on the other. The courts must set out criteria
to distinguish State activities of an industrial or commercial nature. In principle this
should pose little difficulty as they already apply such a distinction to foreign States
(jure gestionis versus jure imperii). As for purely administrative action, they should be
especially sensitive to administrative realities and should clearly distinguish areas whose
social and public importance dictate exemption from compulsory execution. The need
for this type of assessment would underline the importance of greater specialization of
judges in public and administrative law.
(d) Means of Pressure Available to Execution Creditors
It would be unfortunate if the maintenance of immunity from execution for so-
called "purely administrative" activities were to result in denial of any useful remedy
to compel authorities to respect a judgment. Until now, execution creditors have had no
meaningful recourse. This shortcoming should be rectified to subject relations between
the State and the individual to law as opposed to what is only propriety, courtesy or
custom. The current situation encourages abuse, and a concrete effort must be madeto find real safeguards.
Most existing remedies are of little use to execution creditors. Even excluding
problems of immunity, it is uncertain whether their use would allow effective pressure
to be brought to bear on the authorities. Only contempt of court would appear to
answer this need. Yet its use against federal authorities meets with a number of
problems. To overcome these, the Government and the Administration must no longer
be able to invoke the privileges of the Crown. If these authorities were eventually
governed by a special status devolved directly from the Constitution and statutes, and
no longer by a customary status based on the privileges and immunities of the Crown,
the problem could be addressed in a different light.
Without wishing to discard the possibility of contempt of court or any other
remedy in proposing a critical reappraisal of Crown immunities, we feel that a direct
means of pressure based on monetary constraint is to be preferred. Where public
authorities refuse to comply with a judgment, they would be subject to a financial
penalty for each day of default. Upon motion to the court by an execution creditor, the
judge could issue a provisional order condemning the Administration or the Government
to pay a substantial sum of money, calculated daily, until there would be full compliance
with the original judgment. This civil penalty for non-compliance should in no case be
viewed as a penal or criminal remedy. Because the purpose of such a mechanism is to
86
bring pressure to bear on public authorities, the financial sanction aspect should
predominate. It should not be confused with a recourse in damages, whose purpose is
compensation. Upon compliance with the original judgment, the court would issue a
final judgment which would contain the definitive amount of this monetary sanction. In
finalizing the penalty, the courts could consider the circumstances which might have
impeded normal execution of the principal judgment.
Although federal authorities might enjoy immunity from execution for specially
designated property as well as for their activities which are not industrial and
commercial in nature, they would nevertheless be exposed to financial pressure for
non-compliance with judgments. This new remedy should be generalized. There is
nothing to prevent its being general in scope. It should be available to a judgment
creditor even where the nature of the activities in question enables direct recourse to
traditional means of compulsory execution. But it should remain an alternative,
because combined use of compulsory execution and the monetary sanction would be
excessive.
Section 6: Where there is non-compliance with a final judgment by outright
refusal, lateness, incomplete or partial compliance, upon motion to the court,
the Government or the Administration may be condemned to pay a sum of
money for each day that payment is in default, until there has been full
compliance with the principal judgment.
This monetary sanction shall take the form of a provisional order served on
the Minister of Finance and the recalcitrant authority. The court shall
determine the date from which the sanction is to apply. When the court is
apprised of full compliance with the judicial decision, it shall adjudge the
definitive amount of the sanction. In so doing, the court shall consider the
circumstances that prevented the normal execution of the principal judgment.
The proceeds of such adjudication shall be remitted to a scientific or legal
research fund to be named by the court. The condemnation to this penalty
shall not affect entitlement to damages for the harm resulting from non-
compliance with the judgment.
Section 7: Subject to the preceding sections, the creditor may have recourse
alternatively to either execution process or financial constraint, but these two
remedies may not be combined.
(e) The Right to Compensation (Set-Off)
Where they enjoy the legal status of the Crown, federal authorities have total
immunity with respect to claims by the individual for set-off or compensation. In the
course of litigation (this is the common law position), or even in its absence (the civil
law solution), a private individual has no hope of benefitting from set-off or
compensation of his debt with a debt owed by public authorities. The latter enjoy an
absolute total discretion as to the timing and the manner of repaying public debts. '^^^
154. This immunity to set-off may also be invoked against the Canadian provinces, a matter that puts us in
the delicate context of federal-provincial relations with respect to fiscal transfer payments and reciprocal
debts. The constitutional dimension of set-off is too complicated to be satisfactorily addressed by a
study focussed on administrative law and relations between the State and the individual.
87
The individual's entitlement to compensation should be stated unequivocally. Evenwhere two debts do not originate from the same service (for example, A is sued for a
monetary claim by Commission X, while at the same time Department Y owes him a
comparable sum), a right of compensation is now facilitated by the degree of
centralization and computerization of the federal Administration. Communications and
exchanges between services are sufficiently developed so that two different debts, both
liquidated and demandable, may be compensated. Subject to certain exceptions,
especially concerning taxes and fines, all debts should be subject to compensation by
right.
Section 8: Where a monetary claim has been presented by the Government or
the Administration, any individual may invoke the right to compensation if
these authorities also owe him a sum of money that has become demandable.
(This section may eventually be completed with some exceptions, to remove sometypes of debts from the scope of compensation. Any such exceptions should be
justifiable and relatively rare, so as not to undermine the generality of the principle.)
Clearly, this formulation gives compensation a broader scope than common law
set-off. The right to compensation should exist outside the context of litigation andwithin the normalframework of relations between the Administration and the individual.
(f ) Scope of the Proposed Reform
This Study Paper is only one step in the development of a coherent legal status for
the federal Administration as a whole. With respect to compulsory execution, it puts
forth proposals which could perhaps constitute the law applicable to the federal
Administration, as is at present the case for the provisions of the Crown Liability Act
and the Federal Court Act, to cite only two examples. It must be understood that
provincial legislation on execution could only apply subject to the provisions here
proposed. There are two reasons for this.
It is quite logical for federal enactments to govern the federal Administration,
provincial law having only an auxiliary scope. Rather than leave it completely up to the
courts and provincial legislators, the federal authorities should play a much more
dynamic role in modernizing federal administrative law.
The second reason is based on the nature of our proposals. Compulsory execution
is allowed as part of a special scheme of public law which can only exist in light of
distinctions which are proper to administrative law. The general provincial competence
in private law granted by subsection 92(13) of The Constitution Act, 1867 is not
admissible to a special scheme of administrative law applicable to federal authorities.
Parliament should assume its normal responsibilities in this area.
Such a problem has already been resolved in the Garnishment, Attachment and
Pension Diversion Act. When introducing this special legislative scheme, Parliament
was careful to specify, in section 17, that:
In the event of any inconsistency between this Part, any other Act of Parliament or a
regulation made under this Part or under any other Act of Parliament, and the provincial
garnishment law, the provincial garnishment law is overridden to the extent of the
inconsistency.
88
Similar provisions should be included not just in the area of execution but in all
enactments concerning the legal status of the federal Administration.
In drawing up these eight sections, we are not trying to do the work of a
legislative drafter. These sections should be read for their content, not their form. They
make possible the concretization of what could be a substantial reform of immunity
from execution. Inspired in part by public international law and by French and
American law, they essentially aim at making immunity from execution a relative
immunity, not an absolute one as it is now. Their rather technical nature should not be
surprising, since the scheme's effectiveness can only be assured with precise and
rigorous safeguards.
89
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Table of Cases
Air Canada v. Attorney General of British Columbia, 1986, Supreme Court No. 18089.
Alain Lavoie Ltée c. Léo Lisi Ltée, [1981] C. A. 292.
Amax Potash Ltd. v. Government of Saskatchewan, [1977] 2 S.C.R. 576.
Anns V. Merton London Borough Council, [1978] A.C. 728.
Ascenseurs Alpin-Otis Cie Ltée c. Le procureur général du Québec, [1970] C.S. 232.
Association espaces verts du Mont-Rigaud c. L'honorable Victor Goldbloom, [1976] C.S. 293.
Association of Food Merchants of Montreal v. L'association des détaillants en alimentation du
Québec, [1969] B.R. 374.
Attorney-General for Trinidad and Tobago v. Bourne, [1895] A.C. 83.
Attorney-General to the Prince of Wales v. Collom, [1916] 2 K.B. 193.
Bank of United States v. Planter's Bank of Georgia, 22 U.S. 907 (1824).
Barre v. Fortin, [1967] R.P. 137.
Baton Broadcasting Ltd. v. C.B.C. (1966), 56 D.L.R. (2d) 215.
Bay V. The Queen, [1974] 1 F.C. 523.
B.C. Power Ltd. v. Attorney General of British Columbia, [1962] S.C.R. 642.
Beauchemin v. Fournier (1901), 20 R.J.Q. 272.
Beauharnois Light, Heat and Power Co. v. The Hydro-Electric Power Commission of Ontario,
[1937] O.R. 796.
Biais c. L'Association des architectes de la province de Québec, [1964] C.S. 387.
Blanchet v. Blanchet (1935), 73 R.J.Q. 542.
Boileau v. Boileau Ltée (1940), 44 R.R 186.
Bonus Finance Ltd. v. Smith (1971), 21 D.L.R. (3d) 544.
Bouchard v. Les commissaires d'écoles pour la municipalité de Saint-Mathieu-de-Dixville , [1950]
S.C.R. 479.
Briggs V. Life Boats, 11 Allen. 157 (1865) (Mass.).
Burmah OU Company v. Lord Advocate, [1965] A.C. 75.
C.B.C. V. Attorney General for Ontario, [1959] S.C.R. 188.
C.B.C. V. Quebec Police Commission, [1979] 2 S.C.R. 618.
C.B.C. V. The Queen, [1983] 1 S.C.R. 339.
C.LA.C. V. The Queen, 1984, Federal Court No. T-1093-83; aff'dhy [1984] 2 F.C. 866 (C.A.).
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C.N.R. V. Croteau, [1925] S.C.R. 384.
Commission d' assurance-chômage c. Cour provinciale, [1976] C.A. 744.
Commonwealth Plywood Cie Ltée c. Conseil Central des Laurentides, [1978] C.S. 593.
Congreve v. Home Office, [1976] Q.B. 629.
Conseil des Ports Nationaux v. Langelier, [1969] S.C.R. 60.
Corriveau v. Republic of Cuba (1979), 103 D.L.R. (3d) 520.
Crevier v. De Grandpré et Lamothe (1882), 5 L.N. 48.
C.TC.U.M. c. Syndicat du Transport de Montréal, [1977] C.A. 476.
Dame St-Amand v. Decelles (1912), 14 R.R 291.
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Dorset Yacht Co. Ltd. v. Home Office, [1970] A.C. 1004.
Duquet v. Town of Sainte-Agathe , [1977] 2 S.C.R. 1132.
Dutton V. Bognor Regis Urban District Council, [1972] 1 Q.B. 373.
East Suffolk Rivers Catchment Board v. Kent, [1941] A.C. 74.
Emms V. The Queen, [1979] 2 S.C.R. 1148.
Evans v. Hudon and Browne (1877-78), 22 L.C.J. 268.
99
Ferranti-Packard Ltd. v. Cushman Rentals Ltd. (1980), 30 O.R. (2d) 194.
Fitts V. Pilon (1868), 12 L.C.J. 289.
Fonseca v. Attorney General of Canada (1890), 17S.C.R. 612.
Fortier v. Cholette (1936), 60 B.R. 499.
Fortier v. Langelier (1986), 5 B.R. 107.
Franklin v. T/ie ^Me^n (A^o. 2), [1974] 1 Q.B. 205.
Franklin v. The Queen (Note), [1974] 1 Q.B. 202.
Franklin's Case (1593), 5 Co. Rep. 46a.
General Bearing Service Ltd. v. The Queen, [1980] 1 F.C. 444.
Gingras v. V^'zmo (1879), 5 Q.L.R. 237.
Grand Council of the Crées (Quebec) v. The Queen, [1982] 1 F.C. 599.
Hamel v. T/î^or^r, [1970] R.R 59.
Hanschild c. Corporation de la ville de Delson, [1972] C.S. 189.
Harcourt v. Minister of Transport, [1973] 2 F.C. 1181.
H.F.C. of Canada v. Dw^o/^, [1973] R.R 193.
Kawananakoa v. Polyblank, 205 U.S. 349 (1907).
Kienapple v. The Queen, [1975] 1 S.C.R. 729.
La République démocratique du Congo v. Venne, [1971] S.C.R. 997; [1969] B.R. 818.
Laurent v. The Queen, [1976] 2 F.C. 46.
Lelièvre v. Baillargeon (1853), 3 L.C.R. 420.
Lepage v. Association québécoise des pharmaciens propriétaires (1973), R.P. 73.
Lépine v. Gauthier (1877), 5 Q.L.R. 217.
Lipman v. Brisbane Elementary School District, 359 R 2d 465 (1961).
Lov^joy V. Campbell, [1884] 1 C.S. 77.
MacQuarrie v. Attorney-General of Nova Scotia (1972), 32 D.L.R. (3d) 603.
Mam^ and N.B. Elec. Power Co. v. //arr, [1929] A.C. 631.
Martin v. Martin (1981), 123 D.L.R. (3d) 718.
M.D.J. Ltée c. Ministre de l'Agriculture et de la Colonisation du Québec, [1975] C.S. 1039.
Minister of Finance of Canada v. Finlay, 1986, Supreme Court No. 17775.
Moreau c. Cité de Sherbrooke, [1973] C.A. 311.
Morin v. Driscoll College Inc., [1979] R.R 198.
Morley v. Ministre du Revenu national, [1949-50] D.T.C. 29.
Muskopf\. Corning Hospital District, 359 R 2d 457 (1961).
National Indian Brotherhood v. Juneau, [1971] F.C. 498.
Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R.
311.
Operation Dismantle v. The Queen, [1983] 1 F.C. 745 (C.A.); aff'dhy [1985] 1 S.C.R. 441.
Padfield v. Minister of Agriculture , Fisheries and Food, [1968] A.C. 997.
Peetroons c. Ministre de l'Agriculture du Québec, [1976] C.S. 93.
Perreault v. McCarthy (1816), 3 R. de L. 306.
Procureur général du Québec c. Société du parc industriel du centre du Québec, [1979] C.A.
357.
Public Service Alliance of Canada v. C.B.C., [1976] 2 F.C. 145.
Pyx Granite v. Minister of Housing, [1960] A.C. 260.
Queen Victoria Niagara Falls Park Commissioners v. International Railway Co., [1928] 4
D.L.R. 755.
R. V. CAE Industries Ltd., [1983] 2 F.C. 616 (T.D.); aff'd by [1986] 1 F.C. 129 (C.A.).
R. V. Capital Brewing Co. Ltd., [1932] Ex. C.R. 171.
R. V. Central Railway Signal, [1933] S.C.R. 555.
R. V. C.P.R., [1930] Ex. C.R. 26.
R. V. Dominion Building Corp. Ltd., [1928] S.C.R. 65.
R. V. Eldorado Nuclear Ltd. and Uranium Canada Ltd., [1983] 2 S.C.R. 551.
R. V. Gooderham and Worts Ltd., [1928] 3 D.L.R. 109.
R. y.Jewitt, [1985] 2 S.C.R. 128.
R. V. St-Louis, [1897] 5 Ex. C.R. 330.
100
Re Hamill and C.N.R. (1960), 27 D.L.R. (2d) 61.
Re Kraw and Kraw (1982), 135 D.L.R. (3d) 190.
Re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police (1981), 117
D.L.R. (3d) 604. Appeal to the Supreme Court denied by (1981), 117 D.L.R. (3d) 750.
Re Shields and City of Winnipeg (1964), 47 D.L.R. (2d) 346.
Robinson v. Quinn and Casgrain (1896), 9 R.J.Q. 240.
Roncarelli v. Duplessis, [1959] R.C.S. 121.
Rossi V. The Queen, [1974] 1 F.C. 531.
Royal Bank of Canada v. Scott (1971), 20 D.L.R. (3d) 728.
Saskatchewan Government Insurance Office v. Saskatoon, [1948] 2 D.L.R. 30; [1947] 2 W.W.R.1028.
Shaw V. Bourget (1878), 4 Q.L.R. 181.
Smith V. The Queen, [1972] 1 F.C. 561.
Société Asbestos Ltée c. Société nationale de l'amiante, [1979] C.A. 342.
Société de développement de la Baie James c. Kanatewat, [1975] C.A. 166.
Sparling c. Caisse de dépôt et placement du Québec, [1985] C.A. 164.
The Attorney General of the Province of Quebec v. Labrecque, [1980] 2 S.C.R. 1057.
The Minister of Finance of British Columbia v. The King, [1935] S.C.R. 278.
The Sadlers Company's Case (1588), 4 Rep. 54b.
The Western Maid, 257 U.S. 419 (1922).
Tsiafakis v. Minister of Manpower and Immigration, [1976] 2 F.C. 407.
U.S. V. Lee, 106 U.S. 196(1882).
Vermette v. Daigneault, [1972] R.R 369.
Vic Restaurant Inc. v. City of Montreal, [1959] S.C.R. 58.
Weatherby v. Minister of Public Works, [1972] 2 F.C. 952.
West Island Plomberie et Chauffage Ltée c. Volcano Inc., [1983] C.S. 769.
Westeel-Rosco Ltd. v. Board of Governors of South Saskatchewan Hospital Centre, [1977] 2
S.C.R. 238.
Western Minerals Ltd. v. Gaumont and the Attorney General of Alberta, [1953] 1 S.C.R. 345.
Woodward \. Minister of Finance, [1973] S.C.R. 120.
Young V. S.S. "Scotia", [1903] A.C. 501.
Zodiak International Products Inc. c. Polish People's Republic, [1977] C.A. 366.
101
Table of Statutes
Canada
Act of Settlement, 1701.
Act to amend the Financial Administration Act in relation to Crown Corporations, S.C. 1984,
c. 31.
An Act to Render Liable to Seizure a Portion of the Salaries of Public Officers and Employees
(1875), Vict. 38, c. 12.
Broadcasting Act, R.S.C. 1970, c. B-11.
Canada Pension Plan, R.S.C. 1970, c. C-5.
Canadian Charter of Rights and Freedoms, Schedule B of the Canada Act 1982.
Canadian Forces Superannuation Act, R.S.C. 1970, c. C-9.
Canadian National Railways Act, R.S.C. 1970, c. C-10.
Constitution Act, 1982.
Crown Liability Act, R.S.C. 1970, c. C-38.
Department of Transport Act, R.S.C. 1970, c. T-15.
Excise Tax Act, R.S.C. 1970, c. E-13.
Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.).
Federal Court Rules, C.R.C. 1978, c. 663.
Financial Administration Act, R.S.C. 1970, c. F-10.
Garnishment, Attachment and Pension Diversion Act, S.C. 1980-81-82, c. 100.
Merchant Seamen Compensation Act, R.S.C. 1970, c. M-11.
National Defence Act, R.S.C. 1970, c. N-4.
National Harbours Board Act, R.S.C. 1970, c. N-8.
Pension Act, R.S.C. 1970, c. P-7.
Petro-CanadaAct, S.C. 1974-75-76, c. 61.
Prairie Farm Assistance Act, R.S.C. 1970, c. P-16.
Public Service Superannuation Act, R.S.C. 1970, c. P-36.
Royal Canadian Mounted Police Superannuation Act, R.S.C. 1970, c. R-11.
State Immunity Act, S.C. 1980-81-82, c. 95.
The Colonial Stock Act, 1877 (U.K.).
The Constitution Act, 1867.
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48.
Visiting Forces Act, R.S.C. 1970, c. V-6.
War Service Grants Act, R.S.C. 1970, c. W-4.
War Veterans Allowance Act, R.S.C. 1970, c. W-5.
Western Grain Stabilization Act, S.C. 1974-75-76, c. 87.
Provinces
An Act to Amend the Succession Duty Act, S.B.C. 1970, c. 45.
Code of Civil Procedure, R.S.Q. 1977, c. C-25.
Crown Proceedings Act, R.S. P.E.I. 1974, c. C-31.
Proceedings Against the Crown Act, C.S.N.S. 1979, c. P-29.
Proceedings Against the Crown Act, R.S. A. 1980, c. P-18.
Proceedings Against the Crown Act, R.S. N.B. 1973, c. P-18.
Proceedings Against the Crown Act, R.S.O. 1980, c. 393.
Succession Duty Act, R.S.B.C. 1960, c. 372.
The Proceedings Against the Crown Act, R.S.M. 1970, c. P140.
The Proceedings Against the Crown Act, R.S.S. 1978, c. P-27.
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